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Case Comment: Hydro-Québec v. Syndicat des employees
Published in the July 2008 issue of Transportation Notes - View Article
Air carriers and passenger rail carriers in Canada have, in the last two years, been ordered to provide extraordinary services for persons with disabilities without charge. The first of two significant cases ordered VIA Rail to make expensive modifications to a number of rail cars to accommodate the demands of a disability lobby organization. The final word in that dispute was a decision of the Supreme Court of Canada released in March of 2007. A split Court (5-4) upheld a decision of the Canadian Transportation Agency requiring VIA to retrofit passenger rail cars to make them more accessible. We reported on this decision in our April 2007 edition.
More recently, in January of this year, the Agency released a decision requiring Canadian air carriers to implement the so-called “one-person one-fare” policy in their domestic services. Under this policy, persons with disabilities who require a travelling companion or who are too obese to fit into a single seat are to be provided additional seating free of charge. The Federal Court of Appeal declined to intervene and at present an application for leave to appeal is pending before the Supreme Court of Canada. We reported on the Agency decision in our February, 2008 edition.
Under Canadian human rights law, once a person with a disability has demonstrated differential treatment in certain areas of activity (including transportation) the service provider is required to demonstrate that it has taken steps to accommodate the person’s disability, “to the point of undue hardship”. Where that point is reached is a matter for much debate. The Agency has adopted an “impossibility” standard. A service provider who resists accommodation on the basis that accommodation is costly must positively demonstrate, with clear and specific evidence, that it is “unable to incur” the costs. The Agency claims that this standard does not require the service provider to demonstrate that it will become insolvent if required to bear the costs, but it appears to us that the Agency’s “unable to bear” test is at least as stringent as a “to the point of insolvency” test. Both assume that accommodation must be provided unless that is literally impossible.
The Supreme Court released a decision on July 17 which would appear to contradict the approach taken by the Agency, although it is not clear whether the Court will agree that the two approaches are incompatible. This decision arose in the labour context.
A labour union brought a complaint against Hydro-Québec based on the dismissal of a union member. The employee had a very spotty attendance record. In the course of 7 and a half years of employment, she missed 960 days of work, citing numerous physical and mental problems. The employer made an attempt to accommodate her by adjusting her working conditions and allowing gradual return to work after debilitating episodes. Eventually the employer concluded that no improvement in her attendance record was expected and dismissed her.
The union filed a grievance which was dismissed by an arbitrator who heard the complainant at first instance. This dismissal was upheld by a judge of the Superior Court. However, the Québec Court of Appeal overturned the arbitrator’s decision, finding that the employer failed to establish that “it was impossible to [accommodate] her characteristics”.
A unanimous Supreme Court of Canada has confirmed that this approach is incorrect. The classic test for determining whether the point of “undue hardship” has been reached is, in the relevant part, formulated as follows: the employer (and the same goes for service providers) must demonstrate “that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”. This test remains unchanged. However, the Court points out that “impossibility . . . relates to undue hardship”.
It appears to us that this means that where undue hardship intervenes before the accommodation is accomplished the point of “impossibility” has been reached. On the other hand, the Court of Appeal, and we believe the Canadian Transportation Agency, has applied a standard which results in the conclusion that “undue hardship” can never be reached as long as there are possible steps which might be taken to affect the accommodation.
In the Hydro-Québec case, the Supreme Court has introduce another specific limitation on the duty to accommodate. In the case before it, it was clear that the dismissed employee could not perform to any reasonable standard. To accommodate her would have been to “completely alter the essence of the contract of employment” and this is not required by human rights law. The employee has a “duty to perform work in exchange for remuneration” and being unable to discharge that duty, the employee has no right to continued employment.
Hydro-Québec’s appeal was allowed with costs throughout. This is an encouraging decision, the ramifications of which many will be watching closely.
Hydro-Québec v. Syndicat des employees
2008 SCC 43