My great thanks to Professor Michael Lynk of U. of Western Ontario Law School for providing the Workplace Law Blog with this excellent summary of the recent Supreme Court decision in Hydro-Quebec, and several other recent Court decisions dealing with employment law issues (see also my earlier blog linking to Michael’s work):
How Many Swallows Make a Spring? Human Rights and the Workplace at the Supreme Court of Canada
Through the 1990s and into the present decade, the Supreme Court of Canada acquired a largely deserved reputation for adopting and advancing a liberal understanding of employment law and work-based human rights. Beginning with cases like Central Alberta Dairy Pool (1990) and Machtinger (1992), the Supreme Court has articulated a dilating range of common-law employee rights (Wallace, 1997; McKinley, 2001), an empathetic appreciation of disability rights at work (Grismer, 1999; City of Montreal, 2000; Martin, 2003), a relatively generous concept of human rights accommodation (Meiorin, 1999), and the constitutional entrenchment of a modicum of vital associational and expression workplace rights under the Charter (Dunmore, 2001; Pepsi-Cola, 2002; British Columbia Health Services, 2007). Labour law academics have been in scholars’ heaven through this mini-era, with much to write and enthuse about, yet with still enough to criticize and debate.
My own view is that these decisions have been a significant success, particularly with the emergence and articulation of the accommodation duty that has created a human rights revolution in workplace law over the past two decades. Canada is now at the international forefront of the range of workplace accommodation rights available for persons with disabilities (although our actual record on the employment of persons with disabilities indicates that we still have a long ways to go).
Lately, however, the Supreme Court has issued a string of judgements on employment rights and work-based human rights which appear to stand at odds with the direction from the past two decades. In early May, the Court held in Evans v. Teamsters’ Local Union 31 that a terminated union representative who had sued for wrongful dismissal was ill-advised to have refused an offer to return to work after having been fired by a new union president. Mr. Justice Bastarache imposed an objective test which would require a terminated employee to remain in the workplace in some circumstances in order to mitigate her or his damages, a test strongly and properly criticized by Madame Justice Abella in dissent. In late June, the Court (also authored by Mr. Justice Bastarache) in Keays v. Honda Canada struck down most of the damage awards originally granted at trial to a Honda employee with chronic fatigue syndrome who had been fired by Honda following disagreements over the necessity for additional medical information. The Supreme Court in Keays overturned judgements by two lower courts in Ontario, including a strongly-worded trial decision that had excoriated the employer. Left unanswered by the Supreme Court in this decision were a range of accommodation issues that had muddied the lower courts’ analysis.
In late July, the Supreme Court released more two decisions on workplace rights where eyebrows might be raised. In both cases, it overturned appellate court rulings that had purported to apply the Court’s standing approach to human rights challenges at work.
On 17 July, the Court issued its ruling in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000. The Québec Court of Appeal had held that a unionized employee with a litany of physical and mental illnesses and a lengthy record of workplace absenteeism should not have been dismissed by Hydro-Québec, because the employer had not established that an accommodation was impossible to provide. This standard had been set by the Supreme Court in Meiorin, and widely applied by labour arbitrators and human rights tribunals since. The Court of Appeal also ruled that the duty to accommodate must be assessed by the employer as of the time it decided to terminate the employee was made, rather than looking at the employee’s entire past record of work attendance.
The Supreme Court, by a 7-0 vote, overturned the Court of Appeal ruling and restored the labour arbitrator’s original decision that had upheld the employer’s dismissal of the employee. In doing so, it has either clarified or narrowed (depending on your point of view) the Meiorin obligation on the employer that it had to show it was impossible to accommodate an employee short of undue hardship. On the timing of the accommodation, the Court ruled that the employer is entitled to consider the employee’s entire employment history (i.e., number and duration of absenteeism) in order to determine whether an accommodation was no longer possible, not just assess the situation as of the date of termination.
I think that the Supreme Court reached the right conclusion in Hydro-Québec, but the judgement was deficient in the thoroughness of its analysis. The duty of accommodation, even in its most fulsome form, permits an employer to terminate an employee if the employee’s innocent absenteeism has been lengthy, the medical prospects for a productive return to work on a regular basis are dim, and no conceivable accommodation is available. Thus, applying these factors would have reached the same result as the Supreme Court’s, with the prevailing accommodation principles in place.
What Madame Justice Deschamps’ judgement provides is a concise re-articulation of the accommodation duty, primarily on the limits of the duty. She explains that: “If the characteristics of an illness are such that the proper of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test.” All well and good. But what is lacking in Hydro-Québec is a clear re-iteration of the principles from Meiorin that expressed the extent of the employer’s obligations. The tone of the Court’s judgement focuses on the accommodation limits on the employer, rather than the scope, meaning and worth of the accommodation duty itself. As well, what might have been usefully added to the judgement is a commentary on the extent and significance of disability, particularly mental illness, in the Canadian workplace today.
In the end, I doubt that Hydro-Québec will have much of a meaningful impact on the future course of human rights workplace litigation in Canada, one way or the other. The facts of the case were extreme (the employee had missed 960 days of work over a 7 ½ year period, an extraordinary amount by any standard), the accommodations offered by Hydro-Québec appear to have been genuine and appropriate, and the medical evidence on file was unsupportive of a markedly better attendance record in the foreseeable future. Most of all, nothing in the Supreme Court’s reasoning in Hydro-Québec would cause any substantive re-thinking of the scope of the accommodation duty.
The same might not be said for the Supreme Court’s ruling in New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., released the following day. The judgement dealt with the issue of mandatory retirement, a subject with which the Supreme Court has had an unhappy judicial history (McKinney, 1990; Harrison, 1990; Stoffman, 1990; Dickason, 1992; Large, 1995). The issue at hand was the meaning of s. 3(6)(1) of the New Brunswick Human Rights Code, which permits the termination of an employee who has reached a specific age (in this case: age 65) if the termination was pursuant to a “bona fide pension plan”. In a 4-3 judgement, the Court, in an opinion written by Madame Justice Abella, held that the employer, Saskatchewan Potash (which operates a mine in New Brunswick), had compiled with the Code when it released an employee, Melrose Scott, who had reached age 65, but who wanted to continue to work. Three justices, led by Chief Justice McLachlin, would have found that the termination was contrary to the Code and to human rights analysis.
Much of the debate between the majority and dissenting decisions in Saskatchewan Potash revolved around the appropriate human rights methodology to assess the drafting structure of the New Brunswick Human Rights Code. One limitation provision in the Code allows an exemption to discrimination if the impugned action was based on a bona fide occupational qualification, while a second limitation provision specifically permits age discrimination in employment if the terms are found in a bona fide retirement or pension plan. While the particular language of these provisions in the New Brunswick Code is rather unique, the broader exemptions are not: human rights statutes across Canada commonly exempt pension plans from age discrimination complaints. One peculiarity of Saskatchewan Potash was that neither of the parties raised a Charter equality argument before the Supreme Court, which meant that the case became a ruling on statutory interpretation rather than a much more broadly cast s. 15 judgement.
The majority in Saskatchewan Potash took a surprisingly narrow view of human rights methodology. Madame Justice Abella reasoned that legislatures have treated pension plans in human rights statutes differently than other workplace and social issues, because employers and retired employees have legitimate fiscal concerns over the viability of a pension plan. Accordingly, she and the rest of the majority gave “bona fide” in the BFOQ exemption a different meaning than “bona fide” in the pension exemption. They reasoned that as long as a pension plan was subjectively and objectively bona fide (legitimately adopted in good faith), then it would meet the demands of the New Brunswick Code, notwithstanding the fact that it allows an employer to terminate a employee for no other reason than his or her age. (An irony here is that New Brunswick was one of the first jurisdictions in Canada to extend human rights coverage to employees over the age of 65 – thereby formally abolishing mandatory retirement – but left this large bona fide pension plan exemption.) The statutory interpretation offered by the majority read as if they were parsing a tax statute or a commercial contract.
The dissenting judges adopted a more demanding approach to human rights methodology. They reiterated the long-standing rule that human rights statutes are to be given a broad and liberal interpretation, and exemptions to human rights are to be read narrowly and purposively. They also stated that, where a human rights statute is open to more than one meaning, it should be read in a manner consistent with the Charter. The three dissenters proceeded to apply these rules to the New Brunswick Code. They held that the two bona fide exemptions in the Code ought to be read in a similar manner, one that would presume that the legislature meant to impose a justification standard on employers who relied on pension plans which required involuntary retirement at a specific age. “A [pension] plan whose terms or conditions unjustifiably limit the guaranteed human rights of employees is not a legitimate plan and cannot be considered bona fide.”
Saskatchewan Potash continues the Supreme Court’s problematic approach towards age discrimination cases (one can also think of Zurich Insurance, 1992; and Law v. Canada, 1999), which is quite arguably the least-developed of all the human rights grounds in Canada. In my view, the dissenting judgement got it right, and the opinion of Chief Justice McLachlin will stand a good chance of persuading future Supreme Court justices open to a principled and liberal interpretation of human rights legislation.
So, how many swallows make a spring? I personally think it might be quite premature to read these rulings as solid evidence of a more hardened and sceptical approach by the Supreme Court of Canada towards workplace human rights. Mr. Justice Bastarache is no longer on the Court, and he was an influential sceptic in these kinds of cases. Hydro-Québec can be understood as a cases of extreme facts, with minimal precedential value. Saskatchewan Potash has offered a confined approach towards human rights and age discrimination, but it was accompanied by a clearly reasoned dissent that may well have legs.
Yet, it may be that, five or ten years from now, human rights and labour law scholars could be pointing to these decisions as the genesis of a more ungenerous, more inert and more dispirited application of human rights in the Canadian workplace. We may be simply passing through a cautious interregnum, or we may be witnessing the harbinger of something new. That would be a direction to lament.