Aluminum maker discriminated against students rules Quebec appeal court

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Students who were paid less than casual and regular workers by an aluminum smelter even though they performed equivalent work were discriminated against on the basis of social condition, held the Quebec Court of Appeal.

In a decision expected to have significant repercussions in the province’s labour landscape, the Quebec Court of Appeal clarified the burden of proof when challenging the discriminatory nature of a measure, held that students fall within the notion of “social condition” under the Quebec Charter of Human Rights and Freedoms, and confirmed that discriminatory claims under the Quebec Charter do not require additional evidence of discrimination stemming from prejudice, stereotypes or social context, according to experts. Social condition refers to the rank and place an individual occupies in society.

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Hiring process was not tainted by discrimination, rules Quebec appeal court

A public transport agency did not infringe a Montrealer’s right to equal access to employment based on handicap without discrimination when it ended the process to hire him as a bus driver for health reasons, held the Quebec Court of Appeal.

In the latest of a series of growing number of Quebec appeal court decisions that applied the landmark Supreme Court of Canada’s landmark Vavilov framework, the appellate court ruling underscores the importance for employers to buttress their case with solid and thorough medical evidence to rebut the presumption of prime facie discrimination, according to employment and labour legal experts.

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In the news

Four men who bilked an 87-year old former teacher suffering from dementia were ordered by the Quebec Human Rights Tribunal to pay her family nearly $380,000 in damages for financial exploitation and for preying on her vulnerable state.

“Evidence clearly demonstrates the defendants used their postion to the detriment of Ms. Even’s interests, who was an elderly person, handicapped and vulnerable,” held Judge Mario Gervais in Commission des droits de la personne et des droits de la jeunesse (Even) c. Lessard (Calfeutrage Multi-Scellant), 2020 QCTDP 3.

“The Court concludes that the defendants breached her right to the protection against exploitation, in violation of s. 48 of the (Quebec) Charter.”

But Judge Gervais also has choice words against the financial institution that Gemma Evens, since deceased, used. Judge Gervais said he is “perplexed” by the little action that a Laurentian Bank branch took when it noticed that $313,000 was taken out from her bank account over an 18-month period.

“This amount is stunning by its magnitude, given Ms. Even’s financial habits,” noted Judge Gervais. “It is distressing that the bank accepted Ms. Evan’s responses (when questioned about her withdrawals), without considering alerting competent authorities in spite of the presence of worrisome signs of financial exploitation.”

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Damages award in Quebec comic’s discrimination case called ‘dangerous’

A controversial Quebec Court of Appeal ruling that ordered a comedian to pay $35,000 in damages to another entertainer for infringing his right to the safeguard of his dignity without discrimination after mocking his disability may lead to a chilling effect because the decision provides scant guidance over when the line is crossed, human rights law and media law experts said.

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Damages awarded to the mother of a child who was the victim of discrimination

The mother of a child who was the victim of discrimination based on a handicap was awarded $7,500 in moral damages by the Quebec Court of Appeal in a ruling that reaffirms and advances the rights of parents, according to educational and human rights lawyers.

In a closely-watched ruling by the province’s educational sector, the Montreal School Commission was also ordered to pay an equal amount in moral damages to the child, who is afflicted with Down syndrome, after the appeal court found that it discriminated against him when it failed to implement necessary accommodations to teach him in the first two years of high school.

However the appeal court also found that the school commission did not act in a discriminatory manner when it decided that it would be in the best interests of the child, given his special needs, if he pursued his studies in a specialized school rather than a regular school. “It appeared that, from an educational standpoint, the difference between X and his classmates was too great and prevented (him) from truly integrating or socializing,” remarked the appeal court in a 22-page decision in Commission des droits de la personne et des droits de la jeunesse c. Commission scolaire de Montréal 2017 QCCA 286.

“This is an important decision because a trend has emerged where the courts refused to grant damages to parents in similar cases,” said Lysiane Clément-Major, a Montreal lawyer with the Quebec Human Rights Commission. “There have been several decisions that refused to grant damages to parents because the courts held that it was not the parents who were the victim of discrimination. This ruling is very important for the Commission because it establishes the rights of parents.”

In a decision that partly overturned a decision by the Quebec Human Rights Tribunal, the appeal court found that the parents of children who are victims of discrimination based on a handicap can claim compensation for themselves. Heeding guidance by the Supreme Court of Canada in Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, the appeal court noted that while Quebec civil law does not permit compensation for indirect damage, it does allow for damages to be awarded to indirect victims. As the SCC points out, an indirect victim is someone who suffers an autonomous injury after the commission of a fault, where the damage suffered was the logical, direct and immediate result of the fault. In this case, the harm suffered by the mother arose from the from the discriminatory treatment inflicted upon her son, found the appeal court. Her despondency, stress, worry and feeling of powerlessness surfaced when her son could not assert his rights personally, and therefore it fell upon her to represent and defend the interests of her son against the school commission, added the appeal court.

“With children suffering from an intellectual deficiency that prevents them from protecting their own rights, parents are, in some respects, a way to palliate this handicap, and can be considered as the victims of the discriminatory treatment endured by their child,” said the appeal court.

But warns Bernard Jacob, a lawyer with Morency Avocats who plead the case for the Montreal School Commission, the decision does not necessarily mean that the parents of a child who suffered discrimination will themselves always be granted damages. “It’s far from automatic,” said Jacob, an expert in education law. “The ruling states that there must be evidence that the parents themselves suffered harm – that’s what’s important.”

The unanimous ruling has even wider implications for the educational sector in Quebec. The Quebec appeal court once again rejected the notion that schools face a peremptory norm that compels them to integrate and accommodate handicapped children into the mainstream school system. And just as importantly, it reaffirmed that it falls upon the Quebec Human Rights Commission to prove that a school commission did not respect the interests of a handicapped child.

“The Quebec appeal court seized the opportunity to clarify the issue of burden of proof which is how the Quebec Human Rights Commission more or less insidiously sought to reintroduce the notion that there should be a peremptory or quasi-peremptory norm that presumes discrimination has occurred unless the (handicapped) child is in the mainstream school system,” noted Montreal lawyer Yann Bernard with Langlois Avocats who represents school boards.

The Quebec Human Rights Commission argued that the Quebec Human Rights Tribunal erred by imposing on it the burden of proving that the school commission did not act in the interests of a handicapped child. It further argued that two previous rulings issued by the appeal court contradict each other, with one (Commission scolaire des Phares c. Commission des droits de la personne et des droits de la jeunesse 2006 QCCA 82) maintaining that integrating a child is not a peremptory norm while a more recent one (Commission scolaire des Phares c. Commission des droits de la personne et des droits de la jeunesse 2012 QCCA 988) asserting that integration is a goal that school commissions should prioritize.

The Quebec appeal court rejected the arguments, pointing out that the Tribunal “reconciled” both Quebec previous appeal court rulings, both of which followed guidance issued by the SCC in Eaton v. Brant County Board of Education, [1997] 1 SCR 241. In Eaton, the SCC held that while integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality.

The Tribunal therefore correctly held that the interests of the child outweigh the presumption of general application, said the appeal court. It follows then that a school commission must evaluate the strengths and weaknesses of the student as well as assess the advantages the student may acquire from attending regular class. When the school commission concludes that integration into a regular school setting may prove to be beneficial to the student, it must integrate the child by implementing necessary accommodations, so long as those accommodations do not represent an undue burden to the school commission. The Tribunal also correctly found that it is up to the Quebec Human Rights Commission to prove, based on the balance of probabilities, that the school commission acted in a discriminatory fashion when it decides not to integrate a child into mainstream schooling.

“The fundamental objective behind this exercise is the interest of the child,” said Jacob. “The Quebec Human Rights Commission sought to force school commissions to prove that specialized schooling was in the best interest of the student. We argued that it was up to the Commission to demonstrate that regular classes with necessary accommodations was in the best interests of the student. So in terms of burden of proof, this is an important decision.”

The Quebec Human Rights Commission is considering filing an application for leave to appeal before the SCC. It maintains that it should be up to school commissions to prove that the decision that they made regarding the kind of schooling that a handicapped student receives is in the best interests of the child. “They made the decision, and they have all of the information when they evaluated the child,” said Clément-Major.

This story was originally published in The Lawyers Weekly.

Quebec Court of Appeal overturns discrimination case

In a ruling that took human rights lawyers by surprise the Quebec Court of Appeal overturned a discrimination case against aeronautics multinational Bombardier Inc. after holding that there was no evidence that a Canadian pilot of Pakistani origin was a victim of ethnic discrimination.

The Quebec Human Rights Tribunal, in a precedent-setting ruling that held that Quebec human rights laws prevail over American anti-terrorism efforts in Canada, ordered the Montreal-based firm three years ago to pay Javed Latif $319,000 in damages after it found that the pilot’s human rights were violated when Bombardier barred him from flight training at a Montreal facility because U.S. authorities had designated him a security threat. The Tribunal also ordered Bombardier to cease respecting U.S. national security decisions when pilots are seeking flight training under Canadian licences.

But in a unanimous 40-page facts-specific decision that reviewed the evidence of the case, the Quebec Court of Appeal took issue with the fact that the Tribunal based its decision almost entirely on an expert report and testimony of University of Windsor law professor Reem Anne Bahdi. The report concluded that U.S. post 9/11 security measures are generally riddled with stereotypes about Muslims and persons of Arab origin, and therefore the decision to deny Latif must have also been discriminatory. The appeal court found the report was not scientifically objective and had numerous flaws and shortcomings.

“I find it difficult to see how we can allow ourselves to make a judgment that an anti-Arab or Islamaphobic sentiment in the U.S., following the events of September 11, 2001, would be sufficient to create the necessary causal link between the refusal of American authorities to issue a security certificate and (Latif’s) Pakistani nationality,” wrote Justice Marie St-Pierre in Bombardier inc. (Bombardier Aerospace Training Center) v. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 1650. “In the relevant period (2003-2008), Bombardier trained a number of pilots of Arab, Muslim or Middle-Eastern descent who underwent the same security verifications and who received positive responses.”

But human rights experts are concerned that the Quebec Court of Appeal has as of late far too easily accepted motions for leave to appeal decisions issued by the Quebec Human Rights Tribunal, shown little deference to Tribunal rulings, and adopted rules of the Civil Code of Quebec to human rights matters.

“I have the impression that this case was treated as an ordinary commercial law matter that applied civil law rules,” observed Christian Brunelle, a law professor at the Université de Laval. “It ignored the quasi-constitutional status of the Quebec Charter of Human Rights and Freedoms, its distinct nature compared to civil law, and the importance of interpreting human rights violations generously and liberally. It worries me.”

Brunelle, who is conducting a study examining how decisions by the Tribunal fare before the Quebec Court of Appeal, is all the more concerned because there are clear signs that the appeal court “seems to have great interest” in hearing cases stemming from the Quebec Human Rights Tribunal — and does not hesitate to overturn them. The appeal court normally shows much deference over the appreciation of evidence made by judges of first instance, but “for reasons I cannot explain entirely” it seems to be far less reserved when it comes to reviewing evidence from Quebec Human Rights Tribunal decisions, said Brunelle.

Its penchant to apply a “civil law analysis grid” to decide human rights issues is equally disconcerting, with the result that they are more demanding in terms of causality, added Brunelle. The Bombardier decision is a case in point. While the Tribunal held that Latif’s ethnic origins played a role, “perhaps minimal but nevertheless a real one,” in the U.S. decision to blacklist him, the appeal court found that there was no such evidence. “The question then is what evidence is required to invoke discrimination or does one have to demonstrate causality,” asked rhetorically Brunelle. “Depending on what approach one takes, there are different consequences.”

That is an issue that the Court of Appeal of Ontario grappled with over the course of the summer in Peel Law Association v. Pieters, 2013 ONCA 396. In a 45-page ruling, the Ontario appeal court held that all that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. In short, the ground of discrimination must somehow be a “factor” in the adverse treatment. “The Divisional Court’s requirement of a “causal nexus” or a “causal link” between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause,” said Justice R.G. Juriansz.

Thanks to the different tack taken by Quebec appeal court, Quebec human rights jurisprudence is developing “differently” compared to the rest of Canada, asserts Brunelle. “It gives the impression that the Quebec Charter, which is a quasi-constitutional law, is taken less seriously in Quebec regarding issues of discrimination than is the case elsewhere,” remarked Brunelle.

The Bombardier case raises yet more troubling issues, says Montreal lawyer Alain Lecours of Lecours & Hébert. Following the appeal court decision, it now seems that another nation can impose conditions on Canadian companies operating on Canadian soil, says Lecours. A Bombardier executive testified before the Tribunal that American authorities told him not to train Latif, and that if it did, there would be “serious consequences” for Bombardier. Justice Michele Rivet of the Tribunal criticized in her ruling Bombardier for taking the U.S. designation in faith and not trying to find out whether Latif was a security risk for Canadians. “Following this decision by the Quebec Court of Appeal, we now find ourselves in a situation where a foreign state can put pressure and impose conditions on Canadian enterprises here” in Canada, remarked Lecours.

That point of view is echoed by Catherine McKenzie, who represented Latif. “The way that Bombardier acted in this case by applying an American decision, without doing any independent verification on its own as to its validity – and knowing that Latif would have no ability to know the evidence against him or appeal the decision – is permissible,” said McKenzie, a Montreal litigator with Irving Mitchell Kalichman. “That is the impact of this decision.”

A spokesperson for the Quebec Human Rights Commission declined to comment on the case while a Bombardier spokesperson would only say they are pleased by the ruling.

Blind man wins discrimination case

A now-defunct Montreal nightclub was ordered to pay $2,500 in moral damages to a blind man for refusing to grant him and his guide dog access to the dance floor, following a ruling by the Quebec Court of Appeal that raises the bar for business to accommodate disabled people.

In a majority decision that demonstrates yet again the appeal court’s penchant to overturn rulings by the Quebec Human Rights Tribunal, the appellate court held that Simon Beauregard was a victim of discrimination because the nightclub did not take reasonable efforts to accommodate him.

“The principles that emerges from this ruling is that it will take extremely serious reasons to refuse to accommodate someone so in one sense one can rejoice but what preoccupies me is that the Quebec Human Rights Tribunal does not appear to benefit from a minimal amount of deference by the appeal court,” remarked Christian Brunelle, a law professor specializing in human rights at the Université Laval. “The appeal court does not shy away from overturning the Tribunal’s rulings, sometimes even over the appreciation of evidence. That’s what it seems to have done here.”

The ruling, which marks the first time the Quebec appeal court ruled on access to public spaces for service dogs for disabled persons, imposes a “heavy burden” on business that adopt a discriminatory policy to prove that it was based on a bona fide and reasonable justification, said Marc Benoit, an employment lawyer with Loranger Marcoux in Montreal. “Can you imagine the burden that it places on service providers who have to make a decision on the spot,” asked rhetorically Benoit. “The bar is higher than it was.”

On May 2009, Beauregard went to the Radio Lounge Bar with his guide dog and a friend, and was told by the manager that he had to leave the animal in the coat-check area. The bar’s staff were concerned about the presence of the service dog in the middle some 500 partygoers, and feared that it could lead to falls, pushing and shoving, and even fights, even though Beauregard insisted he had never had a problem in other establishments. The owner of the bar, Ahmed Ziad, stepped in and offered Beauregard and his service dog access to a V.I.P. lounge, located away from the dance floor. A month later, Beauregard lodged a complaint with the Quebec Human Rights Commission alleging that he was a victim of discrimination, based on his handicap and the means he used to “palliate” his handicap, infringing articles 10 and 15 of the Quebec Charter of Human Rights and Freedoms.

On February 2013, 18 months after the Commission took legal action before the Quebec Human Rights Tribunal, the Tribunal cleared the bar owner of any wrongdoing. The Tribunal held that while preventing Beauregard and his service dog to gain access to the dance floor was discriminatory, it found that the refusal was based on “a real and reasonable” concern for security. The “mere presence” of the dog on the dance floor where there were several hundred patrons, “many of who were probably drunk,” created a high risk for falls, said the Tribunal.

The appeal court, heeding guidance issued by the Supreme Court of Canada in the Grismer case [British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868] and the Meiorin case [British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, 1999] overturned the Tribunal’s ruling. In Meiorin, the SCC developed a new test for all types of discrimination that broadened the notion of the duty to accommodate. Once a plaintiff establishes a prime facie case of discrimination, the onus lies with the defendant to prove on a balance of probabilities that the policy or standard has a bona fide and reasonable justification. In order to establish this justification, the defendant must prove that that it adopted the policy or standard for a purpose or goal rationally connected to the function being performed, that it was adopted in good faith, and that the policy or standard is reasonably necessarily without incurring undue hardship. A serious risk or excessive cost may be considered as undue hardship.

The Quebec Court of Appeal held in Commission des droits de la personne et des droits de la jeunesse c. 9185-2152 Québec inc. (Radio Lounge Brossard), 2015 QCCA 577 that the Quebec Human Rights Tribunal did not apply all of the elements of the Meiorin test correctly. The Tribunal correctly came to the conclusion that Radio Lounge passed the first two steps of the Meiorin test: its decision was based on a legitimate objective, that is, to ensure the security of its clients, and the nightclub acted in good faith. But the appeal court found that the Tribunal did not apply the third part of the test correctly. Instead “it limited itself to finding that the presence of the guide dog could entail a ‘high’ risk of incidents,” said Justice Jean-François Émond in reasons that Justice Marie-France Bich agreed with. “It did not consider whether the evidence had established the ‘serious’ or ‘undue’ nature of such risk or even its existence. It therefore bypassed the issue without addressing the fact that no actual accommodation had been seriously considered. In this case, the risk was assessed in light of evidence based on impressions.” Granting access to the V.I.P. section was not in fact an “actual accommodation,” but rather was an exclusionary measure that had the effect of isolating Beauregard.

“The appeal court first of all confirmed the importance of granting equal access to handicapped people, and it reminds establishments – private as much as public – that blind people accompanied by service dogs must have access to the establishment,” remarked Marie Dominique, a lawyer with the Quebec Human Rights Commission who successfully plead the case. “They cannot allege a risk to skirt around their obligation to take reasonable steps to accommodate, unless the risk is serious or excessive. So this ruling goes further than the majority of decisions on matters regarding access to public spaces for handicapped people.”

Benoit, however, is concerned about the burden of proof that service providers will have to establish to justify a discriminatory policy. He notes that a business that does not provide a reasonable accommodation will have to demonstrate that the risk is excessive and serious, and that it cannot be based on preconceived ideas or notions. “It has to be based on objective evidence – and it is going to be really interesting to see how service providers will be able to prove that before the courts,” said Benoit. “The burden of proof has become excessively high for service providers.”

Appeal court Justice François Pelletier would have upheld the Tribunal’s ruling. He asserted that the appeal was principally based on an appreciation of evidence, and that deference should have been given to a “specialized body” that was given the mandate to decide on human rights matters. Besides, it was reasonable to conclude that it would have been “unwise” to allow the dog access to the dance floor given the risks that it posed under the circumstances, added Justice Pelletier.

The ruling also appears to go against the grain of yet another ruling by the SCC that seemingly lowered the bar over the duty to accommodate, according to Brunelle. In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 SCR 561, 2008 SCC 43, the SCC overturned a ruling by the Québec appeal court and held that an employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

“The SCC held in the Hydro-Québec ruling that the Meiorin test must be read with a certain degree of flexibility,” noted Brunelle. “However, in the Radio Lounge decision, the appeal court takes a very strong stance and states the obligation to accommodate is extremely important. But in reading the decision one would be hard-pressed to figure out what the nightclub could have done more. Not much guidance is given to determine what is considered to be an excessive risk.”

Trucking company ordered to pay $10,000 for discrimination

A Montreal-area trucking company has paid the price for having a well-entrenched policy of refusing to hire female truck drivers.

The Quebec Human Rights Tribunal ordered Bernard Wolinsky, owner of Laurentian Shavings Products Inc. and Lanjay Peat Moss Inc., to pay $10,000 to a female truck driver for discrimination.

The Tribunal, which found that Wolinsky refused to consider the complainant’s application because she was a woman, held that her right to be treated with equality and dignity had been breached. She was awarded $7,000 in moral damages, and $3,000 in punitive damages.

The complainant, answering a classified advertisement, dropped off her curriculum vitae at the company’s headquarters. As the complainant was shown into Mr. Wolinsky’s office, he told her that he did not hire women. He did not interview her even though she had five years experience working part-time for a number of transportation companies.

According to the evidence before the Tribunal, Wolinsky told her: “We don’t take women here. It’s very difficult for a woman to remove the snow from the roof of the trailers.” When informed by a Human Rights Commission investigator that a complaint was lodged against him, Wolinsky replied: “I don’t hire women. It is my prerogative.”

In 2009-2010, the Human Rights Commission investigated 52 files of sex discrimination, 35 of which were related to employment, and several involved women’s access to non-traditional jobs.

The complainant, answering a classified advertisement, dropped off her curriculum vitae at the company’s headquarters. As the complainant was shown into Mr. Wolinsky’s office, he told her that he did not hire women. He did not interview her even though she had five years experience working part-time for a number of transportation companies.

According to the evidence before the Tribunal, Wolinsky told her: “We don’t take women here. It’s very difficult for a woman to remove the snow from the roof of the trailers.” When informed by a Human Rights Commission investigator that a complaint was lodged against him, Wolinsky replied: “I don’t hire women. It is my prerogative.”

In 2009-2010, the Human Rights Commission investigated 52 files of sex discrimination, 35 of which were related to employment, and several involved women’s access to non-traditional jobs.

High court refuses to hear Moroccan immigration case

The Supreme Court of Canada refused to hear the case of two Moroccans who accused the Quebec government of discrimination in its handling of immigration applications from the North African country. As is usually the case, the high court did not give reasons for its decision.

Khadija Goumbarak and Mohamed Tayouri filed applications for a Québec selection certificate in the class subject to the list of occupations in demand.  Between the time they filed their applications and the time those applications were considered, the list was amended, and the occupations for which they were allegedly qualified were withdrawn from the list.  Their applications were rejected because they also could not meet the requirements in the “employability and occupational mobility” class.  Goumbarak and Tayouri filed a motion for declaratory judgment to quash the decision of the Quebec Minister of Relations with Citizens and Immigration on the grounds that they had, inter alia, acquired rights at the time they filed their applications and were the victims of discrimination on the basis of their Moroccan citizenship.  The Superior Court dismissed the motion.  The Court of Appeal dismissed the appeal.

I’ve written about the Quebec court of appeal ruling, and you can read it here.