Name of Case:  McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de L'Hôpital général de Montréal

Supreme Court Panel: Justices Marie Deschamps, Ian Binnie, Louis LeBel, Morris Fish, Louise Charron, and Marshall Rothstein (majority); Justices Rosalie Abella, Beverley McLachlin, and Michel Bastarache (concurring)

Court appealed from and date of judgment: Judgment of the Quebec Court of Appeal dated March 18, 2005.

Facts: The grievor, a secretary at McGill University Health Centre, went off work in March 2000 after suffering a nervous breakdown. After several failed attempts at a gradual return to work, she was scheduled to return to full-time duties in September 2002; however, a car accident in July 2002 rendered her totally disabled and unfit to work. In March 2003, the employer informed her that her employment would be terminated under Article 12.11.5 of the collective agreement, which provided that after 36 months of absence, "[a]n employee shall lose his or her seniority rights and his or her employment" in case of "absence by reason of illness or of an accident other than an industrial accident or occupational disease."

The union grieved the termination, relying on s.10 of the Quebec Charter of Human Rights and Freedoms, which states: "Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on … handicap."

Case history: In a November 19, 2003 award, Arbitrator Jean Sexton dismissed the grievance, ruling that the employer was entitled to terminate the grievor's employment in accordance with Article 12.11.5 of the collective agreement. Furthermore, Sexton held that, on the basis of the arbitral jurisprudence, Article 12.11.5 did not contravene the Quebec Charter's prohibition against discrimination in employment, because "it is not discriminatory to refuse to give a job to someone because he [or she] is physically incapable of performing it."

On July 4, 2004, Quebec Superior Court Judge Hélène Poulin dismissed the union's application for judicial review. 

However, on March 18, 2005 the Quebec Court of Appeal overturned the Superior Court's decision on the ground that the arbitrator could not "simply apply the terms of the collective agreement and state that it is not discriminatory to refuse to extend the employment of a person who is not physically able to carry it out." Rather, the arbitrator "had to examine whether the employer discharged its burden of proof that the accommodation sought was unreasonable because the additional delay in returning to work would have caused it undue hardship."

The employer appealed the decision to the Supreme Court of Canada.

Supreme Court’s decision (unanimous): The appeal was allowed.

Issue(s): Whether an arbitrator, in assessing an employer’s duty to accommodate, may consider the collective agreement’s provision for termination where an employee is unable to return to work after a specified time period due to health problems.

Reasons: Reinstating the arbitration award, Justice Marie Deschamps, for the majority of the Court, held that the deemed termination clause in the collective agreement, providing for automatic discharge after 3 years' absence due to disability, did not violate the employer's duty to accommodate.

Examining the interplay between the duty to accommodate and collective agreement provisions, particularly deemed termination clauses, Justice Deschamps held that, under management's residual rights, an employer is entitled to establish bona fide measures to ensure employees' regular attendance. She observed: "[I]t must be recognized that parties to a collective agreement have a right to negotiate clauses to ensure that sick employees return to work within a reasonable period of time. If this valid objective is recognized, the establishment of a maximum period of time for absences is thus a form of negotiated accommodation." This "negotiated accommodation," however, is subject to human rights legislation, she added, and employers and unions cannot impose a shorter time period for an employee to return to work or face termination than is provided for in human rights legislation. 

Agreeing with the Court of Appeal that "[r]easonable accommodation is … incompatible with the mechanical application of a general standard," Deschamps held that "a termination of employment clause will be applicable only if it meets the requirements that apply with respect to reasonable accommodation, in particular the requirement that the measure be adapted to the individual circumstances of the specific case." However, while acknowledging that "[t]he importance of the individualized nature of the accommodation process cannot be minimized," she nonetheless ruled that "[t]he period negotiated by the parties [in a deemed termination clause] is … a factor to consider when assessing the duty of reasonable accommodation" – although "[s]uch clauses do not definitively determine the specific accommodation measure to which an employee is entitled, since each case must be evaluated on the basis of its particular circumstances."

In the case under review, Deschamps noted that the arbitrator considered numerous clauses in the collective agreement, including those dealing with rehabilitation measures, and that the employer had granted the grievor longer rehabilitation periods than were provided in the collective agreement. She concluded: "The arbitrator thus did not limit himself to automatically applying a clause of the collective agreement. He was aware of the scope of the employer's duty to accommodate but could not anticipate that the employee would be returning to work in the foreseeable future. He therefore correctly concluded that the employer could not continue to employ someone who had been declared to be disabled for an indeterminate period."

Concurring reasons focus on issue of discrimination

In concurring reasons, Justice Rosalie Abella ruled that the employer's appeal should be allowed because the grievor had failed to prove prima facie discrimination. To quote Abella: "Unlike Deschamps J., then, the issue for me is not whether the employer has made out the justification defence of having reasonably accommodated the claimant, but whether the claimant has satisfied the threshold onus of demonstrating that there is prima facie discrimination, namely, that she has been disadvantaged by the employer’s conduct based on stereotypical or arbitrary assumptions about persons with disabilities, thereby shifting the onus to the employer to justify the conduct." In short, Abella's analysis differed from that of Deschamps because she could not "accept the conclusion of the majority that 'automatic' termination clauses automatically represent prima facie discrimination."

In Justice Abella's view, the majority's approach would render all time-limited legislative employment protection for absences due to illness or disability vulnerable, despite the reasonableness of their length. Moreover, it would remove the incentive for parties to negotiate mutually acceptable absence policies, leaving the decision of when absences will no longer be tolerated to the discretion of employers. Abella held: "It is true [that deemed termination clauses] are finite, and therefore, in a technical sense, arbitrary. But they are not arbitrary in the way we understand arbitrariness in the human rights context, that is, they do not unfairly disadvantage disabled employees because of stereotypical attributions of their ability.  Instead, these clauses acknowledge that employees should not be at unpredictable risk of losing their jobs when they are absent from work due to disability."

Date of the Supreme Court's decision:  January 26, 2007

Lancaster Reference: For discussion of the decision, see Lancaster's Disability and Accommodation E-Bulletin, March 1, 2007, Issue No. 84.

Full text of the decision: http://www.lancasterhouse.com/decisions/2007/jan/SCC-McGill.pdf