Legal News

new law on employment discrimination
May 4, 2000

The following is the headnote summary of City of Montréal et al. v. Commission des droits de la personne et Des droits de la jeunesse prepared by the Supreme Court of Canada: The City of Montréal refused to hire M as a gardener-horticulturalist, and the CUM refused to hire H as a police officer, because the pre-employment medical exam in both cases revealed an anomaly of the spinal column. The City of Boisbriand dismissed T from his position as a police officer because he suffered from Crohn’s disease. The medical evidence in each case indicated that the individuals could perform the normal duties of the position in question and that they had no functional limitations. All three filed complaints with the Commission Des droits de la personne et Des droits de la jeunesse, alleging that the appellants had discriminated against them on the basis of handicap. After conducting its investigation, the Commission applied to the Tribunal Des droits de la personne. In the cases of M and T, Judge Brossard rejected the notion that a handicap could be perceived subjectively. He held that M and T had no remedy under s. 10 of the Quebec Charter of Human Rights and Freedoms because they did not meet the definition of handicap as their anomalies did not result in functional limitations. In H’s case, Judge Rivet found that the assessment of a handicap could be objective or purely subjective. She therefore concluded that the CUM’s exclusionary policy and its decision not to hire were contrary to ss. 10 and 16 of the Charter. The decisions of the Tribunal in the cases of M and T were appealed and the CUM, whose appeal in the H case was pending in the Court of Appeal, was given leave to intervene. The Court of Appeal reversed the decisions of the Tribunal and held that M and T had been victims of discriminatory exclusion. The CUM’s intervention was dismissed. Held: The appeal should be dismissed. The Charter does not define the ground “handicap”, and the word’s ordinary meaning is not clear from the various dictionary definitions. Given its quasi-constitutional nature, the Charter must be interpreted in light of both its context and its objectives. The rules of interpretation do not support the argument that the word “handicap” means a physical or mental anomaly that necessarily results in functional limitations. A liberal and purposive interpretation and a contextual approach support a broad definition of the word “handicap”, which does not necessitate the presence of functional limitations and which recognizes the subjective component of any discrimination based on this ground. The ground “handicap” must not be confined within a narrow definition that leaves no room for flexibility. Instead, courts should adopt a multidimensional approach that considers the socio-political dimension of “handicap”. The emphasis is on human dignity, respect and the right to equality rather than merely on the biomedical condition. A handicap may be real or perceived, and a person may have no limitations in everyday activities other than those created by prejudice and stereotypes. Courts will, therefore, have to consider not only an individual’s biomedical condition, but also the circumstances in which a distinction is made. A “handicap” may exist even without proof of physical limitations or other ailments. The emphasis is on the effects of the distinction, exclusion or preference rather than the precise cause or origin of the handicap. All distinctions based on “handicap” are not necessarily discriminatory. In the present case, the employers acknowledge the causal connection between the complainants’ conditions and the dismissal or refusal to hire. However, in most cases, the applicants will have the burden of proving (1) the existence of a distinction, exclusion or preference, (2) that the distinction, exclusion or preference is based on a ground enumerated in s. 10 of the Charter and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal exercise of human rights and freedoms. Under s. 20 of the Charter, the onus is on the employer to demonstrate that the impugned measure is justified because it is based on aptitudes or qualifications required for the job. Based on this analysis, and given the facts in these cases, there was discrimination against M and T based on handicap for the purposes of s. 10 of the Charter. Accordingly, the judgments of the Court of Appeal are affirmed. The cases of M and T are referred to the Tribunal Des droits de la personne for a decision as to whether the measures of the cities of Montréal and of Boisbriand can be justified. H’s case is returned to the Court of Appeal, in order that the matter be decided in light of this judgment.