Supreme Court Rules on Undue Hardship

Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ) (2008), 63 C.H.R.R. D/301, 2008 SCC 43

The Supreme Court of Canada ruled that the Quebec Court of Appeal erred in a decision on undue hardship.

In this case the grievor was an employee of Hydro-Québec, who had numerous physical and mental problems, including tendinitis, epicondylitis and bursitis. She had undergone a number of surgical procedures for various problems, took medication for hypothyroidism and hypertension, and had episodes of reactive depression and a mixed personality disorder. During the last seven and a half years that she was employed by Hydro-Québec, between January 1994 and July 2001, she missed 960 days of work. One of the main problems was that her personality disorder resulted in deficient coping mechanisms and, as a result, her relationships with supervisors and co-workers were difficult.

Over the years, the employer adjusted her working conditions, gave her light duties, and assigned her to different positions. In July 2001 she was dismissed. She had been absent from work since February of that year and her attending physician recommended that she stop work for an indefinite period. Her psychiatric assessment indicated that she would not be able to return to work without continuing to have an absenteeism problem. The employer dismissed her on the grounds that she was unable to work on a "regular and reasonable" basis and no improvement in her attendance at work was expected. The complainant filed a grievance, as a member of the Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), alleging that her dismissal was not justified.

The arbitrator dismissed the grievance. He ruled that an employer could terminate its contract of employment if it could show that at the time it made its decision, the complainant was unable, for the reasonably foreseeable future, to work steadily and regularly as provided for in the contract. Furthermore the conditions for her return to work suggested by the union's expert would constitute undue hardship. The Superior Court upheld the arbitrator's decision. However, it was set aside by the Quebec Court of Appeal, which ruled that the employer had not proven that it was impossible to accommodate the characteristics of the complainant's disabilities. The Court of Appeal added that the arbitrator should not have taken only the absences into account, since the duty to accommodate must be assessed as of the time the decision to terminate the employment was made.

Deschamps J., writing for a unanimous Court, found that the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, which is the employee's duty to perform work in exchange for remuneration.

The Court of Appeal said that Hydro-Québec did not establish that it was impossible to accommodate the complainant. But the test is not whether it was impossible for the employer to accommodate the employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work.

The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees' fundamental rights and the rule that employees must do their work. The employer's duty to accommodate ends where the employee is no longer able to fulfil the basic obligations associated with the employment relationship for the foreseeable future.

The Court of Appeal also erred when it held that the duty to accommodate must be assessed as of the time the decision to dismiss the complainant was made. A decision to dismiss an employee because she will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation. Here the employee had been absent in the past due to illness, and her doctors were not optimistic about the possibility of improved attendance. The employer need not ignore the past in order to assess undue hardship.

The Court concluded that the Court of Appeal made two errors of law, one relating to the standard for assessing undue hardship and the other relating to the time that is relevant to the determination of whether the employer has fulfilled its duty to accommodate. The arbitrator did not err in law, and there was no justification for interfering with his assessment of the facts.

The appeal was allowed and the judgment of the Court of Appeal was set aside.

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