Name of case: Syndicat des employées de techniques professionnelles et de bureau d'Hydro Québec, Local 2000 v. Hydro Québec
 
Court appealed from and date of judgment: Judgment of the Quebec Court of Appeal, February 7, 2006

Facts: The case involved M.L., who received an "administrative dismissal" in July 2001 after 24 years of employment at Hydro-Quebec as a sales, rates and programs clerk. Beginning in 1994, the employee experienced frequent and prolonged absences due primarily to a diagnosed personality problem that caused serious adjustment problems, workplace conflicts and perceptions on her part that she was being badly treated, and periodic bouts of severe depression. She often telephoned her superiors at the last moment to say that she would not be coming to work that day, or missed work without any notice at all. M.L. was absent from work for 82.5 days in 1994; 225 days in 1995; 186 days in 1996; 52.5 days in 1999; 210.5 days in 2000 and 106 days prior to her dismissal in 2001.

During this period, Hydro-Quebec sought to accommodate M.L. by authorizing a number of absences, moving her to another position under a different supervisor, transferring her to another city when her position was abolished even though under the collective agreement she could have been declared surplus, and authorizing a gradual return to work following a period of absence. The employer finally decided to terminate her employment after receiving several expert medical assessments which concluded that, because of her personality disorder, workplace conflicts and the likelihood of relapses of depression, the prospects of a return to regular attendance were extremely slim.

Case History: In a September 2003 award dismissing a grievance in which M.L. alleged that the employer had failed to accommodate her personality disorder, Arbitrator Gilles Corbeil relied on these pessimistic medical prognoses. He found that the only way that Hydro-Quebec could hope to secure the availability for work to which it was entitled would be to regularly and frequently change M.L.'s position and supervisor, and that this would constitute undue hardship for the employer. The Quebec Superior Court dismissed an application for judicial review.

However, in a February 7, 2006 decision, the Quebec Court of Appeal allowed the union's appeal, overturned the lower court decision and the arbitrator's award, and ordered M.L.'s reinstatement with full compensation. Writing the unanimous decision of a three-member panel of the Court, Justice Allan Hilton ruled that the employer's past attempts to accommodate M.L. did not absolve it from the duty to accommodate a return from her most recent absence. Hilton held that the Superior Court judge incorrectly focused only on the medical experts' gloomy prognoses while ignoring their statements that there was no psychiatric obstacle to M.L.'s return to work, that the workplace conflicts required an administrative rather than a medical solution, and that she might benefit from a phased return to work. Moreover, Hilton ruled that the arbitrator had wrongly determined without any factual basis that the only possible accommodation would be to frequently change the employee's position and supervisor. According to the Court of Appeal, Hydro-Quebec was obliged, as a matter of accommodation, to pursue administrative solutions to M.L.'s workplace conflicts and to provide her with a phased return to work or a part-time position.

Issue(s): (1) Whether the Court of Appeal erred with respect to the scope of the concept of reasonable accommodation; (2) Whether the Court of Appeal erred with respect to the standard of review applicable to the arbitrator's decision.

Status: Heard January 22, 2008. Judgment Reserved.