Canada: Pre-Employment Medical Examinations – Discrimination, Breach Of Privacy And Burden Of Proof

In the recent decision Syndicat des travailleurs et travailleuses de Loto-Québec (CSN) et Loto Québec,1 the Quebec arbitrator, Nathalie Faucher, rejected a grievance filed by the union challenging the legality of a pre-employment medical examination. According to the arbitrator, the union not only had used the wrong forum, but also had not proven that the medical examination had gone beyond checking fitness for work.


The Syndicat des travailleurs et travailleuses de Loto-Québec (Union) filed a grievance alleging that the medical examination imposed by Loto-Québec (Employer) on applicants for the position of administrative technician (AT) was abusive and contrary to the Quebec Charter of human rights and freedoms2 (Charter).

The evidence showed that the job in question was a clerical position that involved placing orders and making sure that lottery tickets were distributed efficiently. However, the AT could also be called upon to replace the warehouse operator, a position requiring the handling of heavy loads.

Because of the more "physical" tasks that the AT could be asked to perform, the Employer required the applicants to undergo a pre-employment medical examination. When they arrived at the medical clinic that the Employer entrusted with administering the examination (Clinic), the applicants had to fill out a comprehensive questionnaire on their medical history and alcohol and drug consumption, undergo a sight test and a back X-ray and provide a urine sample. After completing these steps, they would meet with a physician, who would ask them questions based on the test results. During the hearing, it was also shown that the Employer never had the medical records in its hands: it only received a certificate of fitness completed by the physician.

The Union asked the arbitrator to recognize the abusive nature of the medical examination, deliver the medical reports to the workers involved and make sure that no copies of such reports were retained.


Is a medical examination a necessary requirement for a job? Article 20.07 of the collective agreement binding the parties states that the onus is on the Employer to demonstrate that the requirements for a position are neither abusive nor discriminatory. The Union therefore invoked this provision, claiming that the Employer had to demonstrate that the medical examination was neither abusive nor discriminatory. The arbitrator rejected this argument on the grounds that the medical examination is "a way of checking that applicants meet one of the job requirements"3 and is not itself a requirement.

Was the required medical examination abusive? The Union had already admitted that the Employer had the right to require a medical examination. The real question, therefore, was whether the medical examination was abusive and contrary to the Charter.

The arbitrator pointed out right away that the pre-employment medical examination must be used to establish the employee's fitness for the position he or she holds or aspires to hold. The evidence showed that although the questionnaire was broad, the questions asked by the examining physician were related to the job requirement. Also, the Employer received minimal information as it had access not to medical information but to a certificate of fitness. The arbitrator found that the Union had failed to prove that the medical questionnaire or the urine and visual acuity tests were imposed at the Employer's request. Lastly, the means established for the medical examinations were determined solely by the Clinic. For these reasons, the arbitrator found that the grievance was not the proper avenue of redress and did not target the right person. [Translation] "The Employer cannot be criticized for collecting information when it was not the party collecting the information, did not request such collection of information and is not the holder of the collected information."4

Despite everything, the arbitrator continued her analysis as if the Employer were the party collecting the medical information. She found that one could not speak of discrimination as the employees were not the subject of a distinction, preference or exclusion impairing their right to equality guaranteed by section 10 of the Charter. There may be a breach of privacy, in which case, the onus was on the Union to demonstrate that the breach was unwarranted. Accordingly, even if the party collecting information had been the Employer and not the Clinic, it would not have been sufficient for the Union to establish that information was collected: it had to demonstrate, through a medical expert or a healthcare professional, that the information was not necessary. Absent such proof, the arbitrator cannot determine whether the examinations in dispute are necessary or unnecessary to fulfill the requirements of the job.


This decision is interesting because the arbitration board distinguished between the rights and obligations of the employer and those of its agent, i.e. the medical clinic entrusted with checking physical fitness for staffing purposes. It also affirmed that it is not up to the employer to justify the content of such a check; instead, it is up to the union claiming a breach of privacy to demonstrate, through professional healthcare experts, that the tests required do not have a useful link to the job requirements.


1 Syndicat des travailleurs et travailleuses de Loto-Québec (CSN) et Loto Québec (April 26, 2013), AZ-50963201, Arbitrator Nathalie Faucher.

2 R.S.Q., c. C-12.

3 At para 56 of the decision.

4 At para 82 of the decision.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions