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
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
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.
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