McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal
Collection
Supreme Court Judgments
Date
2007-01-26
Neutral citation
2007 SCC 4
Report
[2007] 1 SCR 161
Case number
30941
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Constitutional law
Labour law
Notes
SCC Case Information: 30941
Decision Content
SUPREME COURT OF CANADA
Citation: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4
Date: 20070126
Docket: 30941
Between:
McGill University Health Centre (Montreal General Hospital)
Appellant
and
Syndicat des employés de l’Hôpital général de Montréal
Respondent
and
Jean Sexton, in his capacity as grievance arbitrator
Respondent
‑ and ‑
Ontario Network of Injured Workers’ Groups
Intervener
Official English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 39)
Concurring Reasons:
(paras. 40 to 65)
Deschamps J. (Binnie, LeBel, Fish, Charron and Rothstein JJ. concurring)
Abella J. (McLachlin C.J. and Bastarache J. concurring)
______________________________
McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4
McGill University Health Centre (Montreal General Hospital) Appellant
v.
Syndicat des employés de l’Hôpital général de Montréal Respondent
and
Jean Sexton, in his capacity as grievance arbitrator Respondent
and
Ontario Network of Injured Workers Groups Intervener
Indexed as: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal
Neutral citation: 2007 SCC 4.
File No.: 30941.
2006: April 12; 2007: January 26.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Human rights — Right to equality — Duty to accommodate — Role of collective agreement in assessment of employer’s duty to accommodate.
Labour relations — Collective agreement — Clause regarding loss of employment in event of extended absence — Employer’s duty to accommodate — Employee unable to return to work after three‑year absence owing to health problems — Clause of collective agreement providing that employee to lose job after three‑year absence by reason of illness — Whether arbitrator may, in assessing employer’s duty to accommodate, consider period provided for in collective agreement.
In March 2000, B took a leave of absence from her job at a hospital on account of health problems. For more than two years, following her doctor’s orders, she tried unsuccessfully to return to work. After the expiry of a period of rehabilitation that was provided for in the collective agreement and had been extended by the employer, B was to return to full‑time work in September 2002, but she had an automobile accident. In March 2003, the hospital, citing B’s prolonged absence, notified her that her employment relationship would be terminated on April 3, 2003. The union filed a grievance in which it contested the decision and asked the hospital to negotiate a reasonable accommodation with B. The arbitrator dismissed the grievance. He noted that the hospital had already accommodated B by granting her rehabilitation periods more generous than were provided for in the collective agreement, and that B was still unfit for work at the end of the three‑year period provided for in the agreement. The Superior Court dismissed the union’s application for judicial review. The Court of Appeal reversed that decision and remitted the case to the arbitrator to assess the accommodation issue on an individualized basis and, if applicable, rule on the appropriate compensation.
Held: The appeal should be allowed.
Per Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.: The parties to a collective agreement have a right to negotiate, in good faith, clauses to ensure the attendance of employees and to ensure that they do their work. A clause of an agreement that provides for termination of the employment relationship should an employee be absent longer than a specified period of time is clearly aimed at ill or disabled employees and, considered from the perspective of the duty to accommodate, is among the measures implemented in the enterprise to accommodate them. However, although the period negotiated by the parties is a factor to consider when assessing the duty to accommodate, it does 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. The right to equality is a fundamental right, and the parties to a collective agreement cannot agree to a level of protection that is lower than the one to which employees are entitled under human rights legislation. In light of the individualized nature of the accommodation process, the parties cannot definitively establish the length of the period in advance. Finally, undue hardship resulting from the employee’s absence must be assessed globally starting from the beginning of the absence, not from the expiry of the period provided for in the collective agreement. [18‑20] [33]
In the instant case, the arbitrator was aware of the scope of the employer’s duty to accommodate. He took the clause of the collective agreement into account but did not merely apply it automatically. He considered all the events leading up to the termination of the employment relationship, together with the accommodation measures granted by the hospital in agreeing to rehabilitation periods longer than those provided for in the collective agreement. He also considered B’s state of health and the absence of evidence that she would be able to return to work in the foreseeable future. The arbitrator therefore correctly concluded that the employer could not continue to employ someone who had been declared to be disabled for an indeterminate period. If in B’s view the accommodation provided for in the collective agreement was insufficient, and if she felt that she would be able to return to work within a reasonable period of time, she had to provide the arbitrator with evidence on the basis of which he could find in her favour. [34‑38]
Per McLachlin C.J. and Bastarache and Abella JJ.: Automatic termination clauses in a collective agreement are not presumptively discriminatory. To accept that such clauses automatically represent prima facie discrimination would render all time‑limited legislated employment protections for absences due, for example, to illness, disability, or pregnancy, presumptively vulnerable no matter how reasonable the protections may be in terms of their length, and would remove the incentive to negotiate mutually acceptable absences. [54‑55]
Here, B did not claim that the automatic termination clause of the collective agreement was discriminatory. Both the arbitrator and the Superior Court judge found no discrimination in the employer’s refusal to continue to employ someone who, after three years of absence due to illness, was still deemed incapable of returning to work by her own doctor. Absent a finding of prima facie discrimination, the employer is not required to justify the clause or its conduct. [41‑42] [64]
Cases Cited
By Deschamps J.
Applied: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; referred to: Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Québec (Procureur général) v. Syndicat de professionnelles et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311; Maple Leaf Meats Inc. v. United Food and Commercial Workers’ International Union, Locals 175 and 633 (2001), 149 O.A.C. 295; Memorial Hospital, Bowmanville and O.N.A., Re (1993), 35 L.A.C. (4th) 401.
By Abella J.
Applied: Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; referred to: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
Statutes and Regulations Cited
Act respecting labour standards, R.S.Q., c. N‑1.1, s. 79.1.
Canada Labour Code, R.S.C. 1985, c. L‑2, s. 239 .
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 10, 20.
Employment Standards Act, S.N.B. 1982, c. E‑7.2, s. 44.021.
Labour Standards Act, R.S.N.L. 1990, c. L‑2, s. 43.11.
Labour Standards Act, R.S.S. 1978, c. L‑1, s. 44.2.
APPEAL from a judgment of the Quebec Court of Appeal (Rousseau‑Houle, Nuss and Pelletier JJ.A.), [2005] R.J.D.T. 693, [2005] Q.J. No. 1724 (QL), 2005 QCCA 277, setting aside a decision of Poulin J., [2004] Q.J. No. 7555 (QL), dismissing an application for judicial review of an arbitral award. Appeal allowed.
Jacques A. Laurin and Marie‑France Major, for the appellant.
Lise Lanno, Gérard Notebaert and Catherine Sauvé, for the respondent union.
Lesli Bisgould, Roberto Lattanzio and Katherine Haist, for the intervener.
English version of the judgment of Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ. delivered by
1 Deschamps J. — This appeal concerns the interaction between labour law and the right of a person to be absent from work owing to an illness or disability. More specifically, what is in issue is the role of a collective agreement in the assessment of an employer’s duty to accommodate an employee who is absent for an indeterminate period owing to personal health problems. For the reasons that follow, I find that the collective agreement plays an important role in determining the scope of the employer’s duty to accommodate and that, in the case at bar, the three‑year period provided for in the collective agreement represents a reasonable accommodation.
I. Facts and Judicial History
2 On March 24, 2000, on account of a nervous breakdown, Alice Brady took a leave of absence from her job as a medical secretary for the appellant, McGill University Health Centre (Montreal General Hospital) (“Hospital”), a position she had held since 1985. Between June 26, 2000 and February 28, 2001, on her doctor’s orders, she attempted a gradual return to work. Her workload was accordingly reduced to three days a week. No other less demanding work was available. Since the collective agreement in force provided for a maximum period of six months for rehabilitation and no progress had been noted in an evaluation dated February 28, 2001, the Hospital notified Ms. Brady that she would have to stay home until she was able to work full time. On March 14, the rehabilitation period was extended until September 17, 2001 following negotiations with the respondent Syndicat des employés de l’Hôpital Général de Montréal (“Union”), which represented Ms. Brady. On September 14, her return to full‑time work was postponed to October 21, 2001, and it was subsequently postponed again to November 23, 2001. However, on November 1, 2001, Ms. Brady’s supervisor asked her to go home because she was disorganized and behaving inappropriately. Her supervisor suggested that she see her doctor. The doctor recommended that a new gradual return to work be attempted beginning March 11, 2002, but the Hospital, relying on the lack of progress observed during the previous rehabilitation periods, rejected this recommendation. A return to full‑time work was accordingly scheduled for September 2002, but Ms. Brady had an automobile accident on July 28, 2002.
3 The collective agreement provided that rehabilitation periods did not interrupt the disability period. On March 12, 2003, the Hospital notified Ms. Brady that her employment would be terminated on April 3, 2003. It cited her prolonged absence as the reason for its decision. The Union filed a grievance in which it contested the decision of March 12, 2003 and asked the Hospital to negotiate a reasonable accommodation with Ms. Brady.
4 On November 5, 2003, the final day of the grievance hearing, Ms. Brady was still receiving total disability benefits from the Société de l’assurance automobile du Québec and was waiting for a shoulder operation. According to the medical reports in the record, the date of her return to work was undetermined.
5 The arbitrator dismissed the grievance (SOQUIJ AZ‑50227506). He found a number of clauses in the collective agreement to be relevant, including one concerning the protection of employees from discrimination and another providing for loss of employment in the event of an absence owing to illness. The clauses quoted by the arbitrator are reproduced in the appendix to these reasons. The arbitrator pointed out that the Hospital had already accommodated Ms. Brady by granting her rehabilitation periods more generous than those provided for in the collective agreement, and that Ms. Brady was still unfit for work at the end of the three‑year period provided for in the agreement. He considered the facts subsequent to the termination of the employment to be relevant, since they were [translation] “clearly interrelated facts on a continuum, with Ms. Brady still being, as of the final hearing day, totally [incapable] of performing the usual duties of her position or of any other comparable position for medical reasons” (p. 17). In the arbitrator’s view, “it is difficult to imagine an . . . additional duty to accommodate an employee whose attending physician considers her to be totally disabled” (p. 20). After thus finding that the Hospital had discharged its duty to accommodate, the arbitrator concluded “that the employer has treated Ms. Brady in a way that was just and non‑discriminatory in correctly applying an express rule set out in the collective agreement” (p. 21). The Union applied for judicial review of the arbitrator’s decision.
6 The Superior Court judge who heard the application noted that Ms. Brady’s illness, which was the cause of her loss of employment, was a handicap within the meaning of the Charter of human rights and freedoms, R.S.Q., c. C-12:
[translation] There is no question in the case at bar that Ms. Brady’s illness, which is the cause of the loss of her employment, is a handicap within the meaning of the Charter, and “it is of little relevance whether the arbitrator found that there was direct discrimination (handicap) or adverse effect discrimination (because the employee did not meet the availability requirements)”. How it is characterized is unimportant, since, in either case, the Supreme Court, in BCGSEU, requires the employer to accommodate the employee in a manner that is not excessive, and to take reasonable measures.
([2004] Q.J. No. 7555 (QL), at para. 37)
She summed up the arbitrator’s conclusions as follows:
[translation] It appears from his decision that the arbitrator found it difficult to imagine a duty to accommodate Ms. Brady, since she was disabled. For him, this in itself constituted undue hardship, as an employer does not have a duty to keep on employees who are incapable of performing their duties. [para. 41]
7 The judge found that these observations were based on a correct and reasonable interpretation of the evidence and that, even though the arbitrator had not expressly mentioned the principles set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, he had applied them correctly. She dismissed the application for judicial review. The Union appealed her decision.
8 In the Court of Appeal, the Union argued that the Hospital had [translation] “failed to take reasonable measures to accommodate the plaintiff” ([2005] R.J.D.T. 693, 2005 QCCA 277, at para. 9). The Court of Appeal concluded that the arbitrator had not assessed the reasonable accommodation issue on an individualized basis but had instead merely applied the provision of the collective agreement mechanically. The Court of Appeal reversed the judgment of the Superior Court and remitted the case to the arbitrator for a ruling on this duty and, if applicable, on the appropriate compensation.
9 The Hospital was granted leave to appeal to this Court on the issue of the scope of the duty to accommodate and on the possibility of agreeing on it in advance in the context of a collective agreement. The Hospital submits that the clause in dispute is generous and meets the test in Meiorin. It claims to have discharged its duty, explaining that it was impossible to further accommodate Ms. Brady, since she was totally disabled and since no date for her return to work was scheduled. The Union, however, considers it contradictory to argue, on the one hand, that accommodation must be individualized and, on the other, that the duty of accommodation can be discharged by mechanically applying a general clause.
10 The rules governing reasonable accommodation in the workplace are well established. The parties do not dispute these principles. The issue here is how they apply to a termination of employment clause.
II. Duty to Accommodate and Collective Labour Relations
11 The duty to accommodate in the workplace arises when an employer seeks to apply a standard that is prejudicial to an employee on the basis of specific characteristics that are protected by human rights legislation. This can occur in the context of a sick employee’s right to be absent from work, as in the case at bar, or of a similarly protected right, such as a woman’s right to be absent from work owing to pregnancy.
12 As can be seen from the many cases in this area, collective agreements often contain clauses providing for termination of the employment relationship after an absence for a specified period of time. Such clauses are clearly aimed at ill or disabled persons. The clause in issue in the instant case reads as follows:
[translation]
12.11 An employee shall lose his or her seniority rights and his or her employment in the following cases:
. . .
5 ‑ absence by reason of illness or of an accident other than an industrial accident or occupational disease (see above), after the thirty‑sixth (36th) month of absence.
13 It is well established that the employer must justify the standard it seeks to apply by establishing:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work‑related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work‑related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
(Meiorin, at para. 54)
14 The first and second steps enable the court to assess the legitimacy of, respectively, the standard’s general purpose and the employer’s intent in adopting it. They thus guarantee that the standard, whether viewed objectively or subjectively, does not have a discriminatory foundation. The third step is a test of rationality whose purpose is to determine whether the standard is necessary in order to accomplish a legitimate purpose. The employer must demonstrate that it cannot accommodate the complainant without suffering undue hardship.
15 The factors that will support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility (Meiorin, at para. 63; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, at p. 546; and Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp. 520‑21). For example, the cost of the possible accommodation method, employee morale and mobility, the interchangeability of facilities, and the prospect of interference with other employees’ rights or of disruption of the collective agreement may be taken into consideration. Since the right to accommodation is not absolute, consideration of all relevant factors can lead to the conclusion that the impact of the application of a prejudicial standard is legitimate.
16 The parties’ positions can be summed up succinctly. The Hospital submits that a collective agreement may, in advance, establish the scope of the duty to accommodate and provide for a maximum period of time beyond which any absence would constitute undue hardship. The Union counters that the Hospital cannot rely on employee benefits granted under a collective agreement as a substitute for the duty to accommodate. In the Union’s view, this duty arises when the period provided for in the collective agreement expires.
17 It is quite true that employee benefits cannot be invoked as a substitute for the duty to accommodate. But the Hospital is not saying that they can.
18 Insofar as the operation of an enterprise relies on its workforce, there is no doubt that an employer may establish bona fide measures to ensure employees’ regular attendance. For example, an employer’s right to require that employees work on certain days of the week was recognized in Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley”), at pp. 555‑56, and in Central Alberta Dairy Pool, at p. 520. Similarly, it 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.
19 The fact that such a period of time has been negotiated and included in the collective agreement indicates that the employer and the union considered the characteristics of the enterprise and agreed that, beyond this period, the employer would be entitled to terminate the sick person’s employment. The consensus that has been reached is significant, because it was reached by the people who are most familiar with the particular circumstances of the enterprise, and also because these people were representing different interests. It can therefore be assumed that the clause has been negotiated in the mutual interest of the employer and the employees. The three‑year period is not, therefore, a monetary benefit included in the remuneration of employees in the same way as health insurance or disability benefits. Rather, it is the maximum period that an employee can be absent before the employment relationship will be terminated. Considered from the perspective of the duty to accommodate, this clause, like the right to return to work part time, is among the measures implemented in the enterprise to enable a sick employee to be accommodated.
20 The period negotiated by the parties is therefore a factor to consider when assessing the duty of reasonable accommodation. Such 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 Commission scolaire régionale de Chambly v. Bergevin, Cory J. wrote the following:
The provisions of a collective bargaining agreement cannot absolve either the employer or the union from the duty to accommodate. Yet, the terms of the agreement are relevant in assessing the degree of hardship which may be occasioned by interference with its terms. Thus, as pointed out in Renaud, supra, at p. 987, a substantial departure from the normal operation of the conditions or terms of employment set out in the collective agreement may constitute undue interference in the operation of the employer’s business. [p. 551]
Neither the employer nor the union may impose a period shorter than the one to which a sick person is entitled under human rights legislation in light of the facts of and criteria applicable to his or her particular case. A clause purporting to do so would have no effect against an employee who is entitled to a longer period. Since the right to equality is a fundamental right, the parties to a collective agreement cannot agree to a level of protection that is lower than the one to which employees are entitled under human rights legislation, nor can they definitively establish the length of the period in advance, since the specific circumstances of a given case will not be known until they occur, that is, after the collective agreement has been signed.
21 It has long been recognized that the parties to a contract cannot agree to limit a person’s fundamental rights: Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at p. 213. This principle was reaffirmed in the context of management rights in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42:
Under a collective agreement, the broad rights of an employer to manage the enterprise and direct the work force are subject not only to the express provisions of the collective agreement, but also to statutory provisions of the Human Rights Code and other employment‑related statutes. [para. 23]
Thus, a clause that meets minimum employment standards is a priori not suspect. The parties may refer to it to determine the individual accommodation to which an employee is entitled in a given situation.
22 The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee and the specific circumstances in which the decision is to be made. Throughout the employment relationship, the employer must make an effort to accommodate the employee. However, this does not mean that accommodation is necessarily a one‑way street. In O’Malley (at p. 555) and Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the Court recognized that, when an employer makes a proposal that is reasonable, it is incumbent on the employee to facilitate its implementation. If the accommodation process fails because the employee does not co‑operate, his or her complaint may be dismissed. As Sopinka J. wrote in Central Okanagan, “[t]he complainant cannot expect a perfect solution” (p. 995). The obligation of the employer, the union and the employee is to come to a reasonable compromise. Reasonable accommodation is thus incompatible with the mechanical application of a general standard. In this sense, the Union is correct in saying that the accommodation measure cannot be decided on by blindly applying a clause of the collective agreement. The arbitrator can review the standard provided for in the collective agreement to ensure that applying it would be consistent with the employer’s duty to accommodate.
23 A number of termination of employment clauses have been considered judicially. In Québec (Procureur général) v. Syndicat de professionnelles et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311, the Quebec Court of Appeal ruled on an application for review of an arbitration award dismissing the grievance of an employee whose employment had been terminated after over two years’ absence owing to illness. The Court of Appeal criticized the arbitrator for applying the clause mechanically and remitted the case to him to assess the duty to accommodate on an individualized basis. However, Thibault J.A. noted that the employer would be entitled to dismiss a complainant at the end of the period provided for in the collective agreement if the employee could not establish that she would be able to work within a reasonable period of time:
[translation] As drafted, clause 3‑1.18 of the collective agreement does not authorize the employer to automatically dismiss an employee at the end of the salary insurance period, although the employer may do so if the employee cannot establish that he or she will be able to work within a reasonable period of time. [para. 76]
24 In Ontario too, courts and tribunals have refused to find that a termination of employment clause authorizes an employer to dismiss an employee without considering the employee’s specific circumstances: Maple Leaf Meats Inc. v. United Food and Commercial Workers’ International Union, Locals 175 and 633 (2001), 149 O.A.C. 295 (Div. Ct.), and Re Memorial Hospital, Bowmanville and O.N.A. (1993), 35 L.A.C. (4th) 401 (Ont.).
25 To sum up, the conclusion to be drawn from the case law is 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. If the period provided for in the termination of employment clause is less generous than the one to which the employee is entitled under the principles applicable to the exercise of human rights, the clause will have no effect against the employee and the employer will have to propose further measures to accommodate him or her. The period provided for in a clause such as this is not meant to be a threshold representing the minimum period to which an employee is entitled. On the contrary, the clause should provide for a generous accommodation likely to meet the needs of as many employees as possible. In providing for the most demanding of circumstances, the employer grants employees whose needs are less acute a period more generous than would be required by human rights legislation. Unions can therefore play an important role, where such clauses are concerned, in the course of the collective bargaining process.
26 The three‑year period provided for in the agreement between the Hospital and the Union in the case at bar is longer than those provided for in a number of statutes and collective agreements that have already been considered on judicial review (see: Canada Labour Code, R.S.C. 1985, c. L‑2, s. 239 ; Act respecting labour standards, R.S.Q., c. N–1.1, s. 79.1; Employment Standards Act, S.N.B. 1982, c. E‑7.2, s. 44.021; Labour Standards Act, R.S.N.L. 1990, c. L‑2, s. 43.11; Labour Standards Act, R.S.S. 1978, c. L‑1, s. 44.2).
27 Thus, although a clause providing for termination of the employment relationship after a specified period is not determinative, it does give a clear indication of the parties’ intention with respect to reasonable accommodation. It is accordingly a significant factor that an arbitrator must take into account in considering a grievance. In these circumstances, and depending on the duration of the authorized period of absence, such a clause can serve as evidence of the maximum period beyond which the employer will face undue hardship. This evidence may prove very useful, especially in the case of a large organization, where proving undue hardship resulting from an employee’s absence could be complex.
28 In short, it cannot be concluded that the accommodation provided for in the collective agreement is a complete answer to the complaint of an employee claiming a more generous accommodation measure. But it is no more appropriate to say that the benefit incorporated into the collective agreement should not be taken into account in the overall assessment of the accommodation granted by the employer.
III. Did the Arbitrator Err in the Case at Bar?
29 The Court of Appeal faulted the arbitrator for failing to assess on an individualized basis the accommodation to which Ms. Brady was entitled:
[translation] The arbitrator could not simply apply the provisions of the collective agreement and state that it is not discriminatory to refuse to extend the employment of an individual who is not physically capable of performing the duties of the position. He should have considered whether the employer had discharged its burden of proof with regard to the submission that the requested accommodation measure was unreasonable because the additional time the employee would have before returning to work would cause it undue hardship. [para. 32]
30 The analysis the arbitrator had to make concerned the reasonableness of the accommodation requested by Ms. Brady. Did the arbitrator fail to discharge his duty? In my view, the Superior Court’s interpretation captures the spirit of the arbitrator’s analysis better than that of the Court of Appeal. The arbitrator did indeed conclude that the clause in the collective agreement applied to Ms. Brady, but he did so only after having reviewed and analysed the evidence.
31 The arbitrator started by quoting the clauses of the collective agreement that incorporate the employer’s quasi‑constitutional obligations relating to the right to equality. He then also quoted the clauses concerning rehabilitation measures and, finally, the one that sets out the circumstances that will result in termination of the employment relationship. If he had felt that only the latter clause was relevant and had simply applied it blindly, he would probably have quoted only it.
32 The arbitrator also related the facts and stated that he had to rule on the applicability of the clause [translation] “in the context of the duty to accommodate imposed on the employer” (p. 20). He noted that the employer had discharged its duty to accommodate by granting rehabilitation periods that were longer than the ones provided for in the collective agreement. He concluded with a comment that was determinative in the circumstances that had been presented to him, namely that he found it [translation] “difficult to imagine an . . . additional duty to accommodate an employee whose attending physician considers her to be totally disabled” (p. 20).
33 The Court of Appeal appears to have held that the duty to accommodate must be assessed as of the time the employee was effectively denied an additional measure (para. 31). In my view, this approach is based on a compartmentalization of the employee’s various health problems. Undue hardship resulting from the employee’s absence must be assessed globally starting from the beginning of the absence, not from the expiry of the three‑year period.
34 The arbitrator was correct to assess the circumstances in light of all the events leading up to the termination of the employment relationship. What is more, when he ruled on the Union’s objection to the introduction in evidence of facts subsequent to the filing of the grievance, he made it clear that the employee’s overall state of health was relevant:
[translation] Certain facts arising after the filing of the grievance designated as Exhibit S‑2 are indeed relevant to this case and must be considered, since they help to explain the situation that existed at the time the grievance arose. These facts are clearly, from the perspective of the instant case, complementary facts, are intimately related to the original events and make it possible to ascertain the actual situation at the time the grievance was filed. They are clearly interrelated facts on a continuum, with Ms. Brady still being, as of the final hearing day, totally [incapable] of performing the usual duties of her position or of any other comparable position for medical reasons. [Emphasis added; p. 17.]
35 The arbitrator took into account not only the accommodation measures granted by the Hospital, which had agreed to rehabilitation periods longer than those provided for in the collective agreement, but also the dynamics leading to the failure of the attempt to return to work before the expiry of the three‑year period and, finally, the state of Ms. Brady’s health after the employer’s decision.
36 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.
37 The arbitrator took into account the clause of the collective agreement that authorized the employer to terminate Ms. Brady’s employment, which was an important piece of evidence. This clause was not considered in a factual vacuum. Rather, it acquired particular significance for the purpose of demonstrating the Hospital’s willingness to accommodate Ms. Brady during the rehabilitation periods despite the absence of evidence that she would be able to return to work in the foreseeable future.
38 The duty to accommodate is neither absolute nor unlimited. The employee has a role to play in the attempt to arrive at a reasonable compromise. If in Ms. Brady’s view the accommodation provided for in the collective agreement in the instant case was insufficient, and if she felt that she would be able to return to work within a reasonable period of time, she had to provide the arbitrator with evidence on the basis of which he could find in her favour.
IV. Conclusion
39 For these reasons, it is my view that the Superior Court did not err in dismissing the application for judicial review. I would accordingly allow the appeal and set aside the Court of Appeal’s decision with costs in both courts.
The reasons of McLachlin C.J. and Bastarache and Abella JJ. were delivered by
40 Abella J. — An employer has a duty to provide a discrimination-free workplace. It is important, therefore, to be clear about what discrimination is — and what it is not — so that employers know their duties and employees know their rights.
41 The grievor, Alice Brady, asked that “By virtue of the collective agreement . . . the employer arrive at a reasonable accommodation with myself.” Notably, Ms. Brady did not claim that the automatic termination clause of the collective agreement pursuant to which her employment was terminated, was discriminatory. Nor did the union allege a breach of the collective agreement.
42 Both Jean Sexton, the arbitrator, and Poulin J. found no discrimination on the part of the employer in refusing to continue to employ someone who, after three years of absence due to illness, is still deemed to be incapable of returning to work by her own doctor. I agree.
43 One preliminary matter. Ms. Brady did in fact return to work intermittently on a part-time basis during her absence of more than 36 months. The arbitrator held that these periods of rehabilitation did not interrupt her absence from work under the collective agreement. He reasoned that “absence” — an undefined term in the agreement — should be construed with reference to the definition of “period of disability”. The latter provided for continued sick-leave benefits if an employee returned for less than 15 days of full-time work or if the employee could show that a completely unrelated accident or illness had caused any s