City of Montreal, et al. v. Commission des droits de la personne et des droits de la jeunesse

In the first case the complainant, M, was refused employment as a gardener-horticulturist, even though she had successfully completed her training, after a pre-employment medical examination revealed a weakness in her spinal column. M had never suffered any lower back pain and had no disability performing normal activities.
In the second case the complainant, T, was hired as a police officer, and started a probationary period of twelve months. After three months he fell ill; tests revealed that he suffered from chronic inflammation of the intestine. Although medical reports indicated that he was asymptomatic, in good health and able in the short and medium term to perform his duties, he was dismissed.

M and T filed complaints with the Commission des Droits de la Personne et des Droits de la Jeunesse du Quebec (the Commission) arguing that the appellants had infringed their right to equality in employment by excluding them on the basis of a handicap within the meaning of s 10 of the Quebec Charter of Human Rights and Freedoms (the Charter). The Commission applied to the Tribunal des Droits de la Personne (the Tribunal), which concluded that neither complainant had a handicap under s 10. On appeal, the Court of Appeal held that M and T had been discriminated against under s 10 and returned the cases to the Tribunal for a decision under s 20 of the Canadian Charter of Rights and Freedoms 1982 (the Canadian Charter). The appellants appealed to the Supreme Court to determine the meaning of ‘handicap’ under the Charter.

[Adapted from INTERIGHTS summary, with permission]

In dismissing the appeal and referring the case to the Tribunal, the court held that:

1. Given its fundamental and quasi-constitutional status, human rights legislation prevails over other legislation. It must be interpreted in light of both its context and objectives and it is inappropriate to rely strictly on a grammatical analysis (Insurance Corporation of British Columbia v Heerspink [1982] 2 SCR 145 (Can SC) and Ontario Human Rights Commission v Simpsons-Sears Ltd [1985] 2 SCR 536 (Can SC), and dicta of Gonthier J in Béliveau St-Jacques v Fédération des employées et employés de services publics Inc [1996] 2 SCR 345 (Can SC) followed).
2. The objectives of the Charter cannot be achieved unless we recognise that discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual and functional limitations. Thus the Charter’s objective of prohibiting discrimination requires that ‘handicap’ be interpreted so as to recognise its subjective component.
3. While there is no requirement that the provisions of the Charter mirror those of the Canadian Charter they must nevertheless be interpreted in light of the Canadian Charter (Vriend & Ors v Alberta & Ors (1998) 4 BHRC 140, (1998) 2 CHRLD 211 (Can SC), and British Columbia (Public Service Employee Relations Commission) v BCGSEU (1999) 3 SCR 3, (1999) 3 CHRLD 31 followed).
4. The legislative history, the extrinsic evidence and the manner in which the new wording of s 10 of the Charter has been interpreted by a majority of Quebec courts all support a broad interpretation of the ground of ‘handicap’, which does not require functional limitations.
5. Section 10 and the ground of ‘handicap’ should be interpreted in light of the other provisions of the Charter. Under s 10 the applicant must produce prima facie evidence of discrimination and its connection to a prohibited ground of discrimination. Under s 20 the employer must show that the measure taken is justified because it is based on aptitudes or qualifications required for the job. Requiring the applicant to prove that s/he has functional limitations according to s 10 would have the effect of reversing the burden of proof.
6. The ground ‘handicap’ must not be so narrowly defined that it leaves no room for flexibility. It is appropriate to propose a series of guidelines that will facilitate interpretation and at the same time allow courts to develop the notion of handicap consistent with various biomedical, social or technological factors. A multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple-biomedical condition, this approach recognises that the attitudes of society and its members often contribute to the idea or perception of a ‘handicap’. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.

[Adapted from INTERIGHTS summary, with permission]

"Given the presumption that the legislature does not speak in vain, it is my view that if the legislature has expressly provided an exemption based on health, it must be because, outside the context of insurance contracts and plans, health may constitute a prohibited ground of discrimination. This argument is particularly persuasive in that s. 10 establishes an exhaustive list of grounds of discrimination, and handicap is the only listed ground that can be connected to health. We must, therefore, conclude that the legislature has established a connection between the concepts of “health” and “handicap”, which supports an interpretation of the word “handicap” that includes ailments related to health." Page 696.