In a recent ruling setting aside a decision by the Human Rights Tribunal (Tribunal), the Quebec Court of Appeal1 found that an agreement entered into by the Government of Quebec and the Syndicat des constables spéciaux du gouvernement du Québec to reduce labour costs does not violate, based on age, the right to equality in employment protected by the Charter of human rights and freedoms (Charter).2 The Court justified its intervention on the grounds that the action brought by the Commission des droits de la personne et des droits de la jeunesse du Québec (CDPJQ) was time-barred, the differential treatment claimed by the Commission was based on seniority, not age, and the Tribunal had failed to consider the particular context of the agreement in analyzing the right to equality in employment.
In the mid-1990s, Quebec was going through tough economic times and the impact was being felt on government finances. To mitigate that impact, the government asked the public service unions to agree to a 6% reduction in the public service payroll.
In that context, the government and the Syndicat des constables spéciaux du gouvernement du Québec signed an agreement on September 25, 1996. At the time, special constables were divided into two subgroups: a subgroup of 190 permanent special constables and a subgroup of 45 casual special constables. The casual special constables had no job security and no guaranteed minimum hours of work.
One of the scenarios considered by the government to reach the 6% target was to abolish the casual special constable positions and farm the work out to private security agencies, as is its right. Knowing this, the union focused its efforts on protecting the casual special constables.
The agreement entered into provided for the retention of the casual special constables in return for the addition of five new salary levels at the bottom of the salary scale. Only casual special constables were affected by this measure, which entailed a salary decrease.
The agreement came into effect on November 1, 1996. More than three years later, 17 casual special constables filed a complaint with the CDPJQ. On February 22, 2002, the CDPJQ concurred with the complainants and brought the matter before the Tribunal. Almost eight years later, the Tribunal found that the government and the union had compromised the right to equality of the 17 casual special constables and held the government and the union, respectively, 70% and 30% financially liable.
Reasons for the Court of Appeal's judgment
In its decision, the Court rules that the application filed by the CDPJQ is time-barred because it was filed more than three years after the new pay scale came into effect. The Court sets aside the CDPJQ's argument that the injury suffered by each complainant is continuous and perpetuated each pay period. According to the Court, the Tribunal confused the source of the alleged discrimination (the agreement) and the effects of the discrimination (salary). In the Court's view, the wrongful act is the agreement signed on November 1, 1996. The damages suffered each pay period are an effect of the agreement and not the cause of action establishing the starting point for computing the prescriptive period.
Discrimination based on age
To support the argument of discrimination based on age, the CDPJQ submitted statistics to the Tribunal that showed that 85.3% of casual special constables covered by the agreement were under 40 years of age, compared to 17.6% of permanent special constables. Based on these percentages, the Tribunal decided that the agreement introduced disproportionate effects on the group of casual special constables between the ages of 20 and 39.
The Court rejects this finding outright, pointing out that the person who had prepared the table was not heard at the hearing and the inferences that counsel for the CDPJQ draws from the tables cannot be considered as evidence. Second, the Court questions the evidential value of the statistical tables identifying the target group as the group between 20 and 39 years of age when a 25-to-35 target group could also have been chosen. It continues its analysis by stating that [translation] "a simple summary check of the statistical data" would have revealed to the Tribunal that, for example, 41% of the individuals comprising the "casual special constables" subgroup were complainants over 35 years of age and 84% of the complainants had less than two years of seniority. Lastly, the Court states that [translation] "the differential treatment revealed here results not from the employees' age but from their years of experience," which, according to Section 19 of the Charter, is not prohibited.
Right to equality
The Court adds in obiter comments concerning the right to equality in employment that, according to the Tribunal, was compromised. The Court expresses its disagreement by pointing out that the Tribunal's analysis fails to consider the particular context of the agreement. The Court refers to the advantages of the agreement respecting the conditions of employment of the casual special constables, including the preservation of the employment relationship. It also points out that most of the casual special constables earned a higher annual income in the first years after the agreement came into effect than they had before the agreement. The Court finds the CDPJQ's complaints against the government and the union ironic given that the government and the union had agreed on measures enabling the casual special constables to keep their jobs. For the Court, the Commission simply failed to demonstrate an injury in the nature of a disadvantage affecting the complainants' right to equality.
This judgment identifies the steps that have to be completed before the right to equality under Section 10 of the Charter can be found to have been violated. It serves as a reminder that differential treatment does not necessarily result in a discriminatory situation. It also establishes that if the differential treatment is based on experience, not age, then there can be no discriminatory situation. The injury, meanwhile, must be based on actual facts. In the case at issue, the Court determined that the 17 casual special constables had not suffered any actual injury as result of differential treatment – quite the opposite. As confirmed by the Court, it is difficult under the circumstances to claim that the employer violated their right to equality.
1 Québec (Procureur général) c Commission des droits de la personne et des droits de la jeunesse du Québec, 2013 QCCA 141, 500 09-020488-102.
2 RSQ c. C-12.
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