Canada: The Refusal To Consider The Application Of A Previously Terminated Employee Is Ruled Not Discriminatory By The Quebec Court Of Appeal

On February 14, 2012, in the decision Commission des droits de la personne et des droits de la jeunesse c. Centre hospitalier universitaire de Sherbrooke, the Quebec Court of Appeal upheld a decision of the Quebec Human Rights Tribunal(HRT), concluding that the refusal of the Sherbrooke University Hospital (CHUS) to consider the application of a former employee previously terminated was not discriminatory and did not violate sections 10 and 16 of the Charter of Human Rights and Freedoms of Quebec (the Charter).


The plaintiff had been working as a food services clerk at the CHUS since 1985 until his termination in 2001 due to his chronic absenteeism caused by an addiction to alcohol. The plaintiff filed a grievance to challenge his termination but the arbitrator rejected it on the basis that the employer had offered many "last chances" to the grievor who had promised to undergo therapy and resolve his alcoholism problem, but never did.

In 2004, the plaintiff  earned a diploma to work as a personal support worker. Previously, in 2001, he had followed a therapy program along with institutional treatment. In January 2005, after unsuccessful attempts at getting hired in other hospitals, he applied for a position at the CHUS as a personal support worker. Shortly after that, he was informed that his application was rejected because of his previous termination in 2001.

Human Rights Tribunal Judgment

The HRT conceded that, prima facie, there was discrimination on the grounds of a handicap. According to the case law, addiction to alcohol is considered a handicap and a prohibited ground of discrimination pursuant to section 10 of the Charter. Moreover, section 16 of the Charter prohibits discrimination at the time of hiring.

However, the HRT ruled that proper attendance at work is a justified occupational requirement within the scope of section 20 of the Charter. Section 20 provides that denying an applicant a position on the basis of a lack of aptitudes or qualifications required for employment does not amount to discrimination. According to the HRT, the obligation of accommodation incumbent upon the employer did not require the CHUS to disregard the plaintiff's past employee record, which demonstrated that the plaintiff was unable to meet this position's requirements. Furthermore, his past behavior had permanently broken the trust relationship between the two parties.

Judgment of the Court of Appeal

The Court rejected the appeal by a majority of two judges against one.

According to Justice Duval-Hesler, timely attendance at one's workplace constitutes a good-faith professional requirement. In her view, the issue at hand was to determine whether the refusal of an individualized evaluation of the plaintiff's application because of his previous termination for poor attendance was unreasonable. The judge noted that the employer had verified the plaintiff's situation many times prior to proceeding with his termination and that an arbitrator had ruled that the cause for his termination was reasonable and not discriminatory. As a result, since the refusal of the application of the plaintiff relies on the same cause as the termination, this refusal cannot be considered unfair in the circumstances. The judge also mentions the termination issue is res judicata and the HRT could not review the arbitrator's decision.

Justice Dufresne writes that the trust relationship between the CHUS and the plaintiff no longer exists, justifying the refusal to consider the plaintiff's application. According to Justice Dufresne, this refusal was not discriminatory pursuant to section 20 of the Charter on the basis that the CHUS had no obligation to invite the plaintiff for an interview.

Justice Bouchard, dissenting, insists on the fact that when the applicant applied for a job in 2005, the plaintiff had remained sober for over three years and a half and was in complete remission according to a medical expert. Moreover, the plaintiff had completed formal training and three internships to work as a personal support worker. According to Justice Bouchard, even though the employer could indeed take into account the plaintiff's previous record and that the employer had no obligation to make a job offer, the employer should have given the plaintiff access to the normal hiring process. The employer should also have conducted an individualized evaluation of the application, taking into account the plaintiff's current situation. As a result, Justice Bouchard would have allowed the appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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