Duty to accommodate — recent Quebec decisions

Over the last few years, Québec courts and tribunals have rendered many interesting decisions discussing an employer’s duty to accommodate employees who are handicapped or have special needs.
By Natalie Bussière

Over the last few years, Québec courts and tribunals have rendered many interesting decisions discussing an employer’s duty to accommodate employees who are handicapped or have special needs.

What is discrimination?

The Québec

Charter of Human Rights and Freedoms

was adopted in 1975. In

Béliveau St-Jacques v. Fédération des employées et employés de services publics inc.

, it was determined that the

Québec Charter

has a “quasi-constitutional” status, which implies that its provisions will prevail over any contractual arrangement agreed upon by the parties, including employment agreements.

Section 10 of the

Québec Charter

provides for the full and equal recognition and exercise of a person’s human rights and freedoms without distinction, exclusion or preference based on specific characteristics of the person.

Further, s. 16 deals specifically with discrimination in the context of an employment relationship as follows:

16. No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.

The protection afforded to employees is clearly very broad, however, not all differential treatment between employees or groups of employees is prohibited by the

Québec Charter

. For discrimination to occur, the distinction, exclusion or preference must be based on a particular characteristic of the person affected.

The prohibited grounds for discrimination are found at s. 10, which refers to race, colour, sex, pregnancy, sexual orientation, civil status, age (except as provided by law), religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

The duty to accommodate

The duty to accommodate is not spelled out in the

Québec Charter

or the regulations. This obligation was developed by the courts and tribunals in relation to complaints alleging that a requirement of the employer, which is usually a

bona fide

work requirement, operates to discriminate against an employee in relation to a prohibited ground of discrimination.

The requirement itself may be neutral, but its effect on some employees is different than on the rest of the population.

The Meiorin decision


British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U.

(also known as the


decision), the Supreme Court provided guidance as to the correct method to be used in order to analyse a work requirement which could have discriminatory effects:

“An employer may justify the impugned standard by establishing on the balance of probabilities:

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.” If the employer fulfils its burden of proof, it is deemed to have adopted a non-discriminatory job requirement.

The Supreme Court in


explained that, “This approach is premised on the need to develop standards that accommodate the potential contributions of all employees in so far as this can be done without undue hardship to the employer.”

Undue hardship

What constitutes undue hardship? Where does the obligation of the employer to accommodate an employee stop?

Unfortunately, the concept of “undue hardship” cannot be defined without examining the specifics of a given case. Many factors will be taken into consideration when discussing the scope of an employer’s obligations. Factors such as the size of the business, its financial resources, the nature of the business, the cost of the accommodation measure, the risks such accommodation measure could pose to the health and safety of the employee as well as to his or her colleagues and the public, and the effect of the accommodation measure on the other employees and on the productivity of the business, have been taken into consideration by courts assessing the scope of the employer’s obligations.

Each case must therefore be analyzed according to its particular circumstances, and the only available guidance is in decisions rendered by courts or tribunals in similar circumstances. This fact-driven jurisprudence is illustrated by two recent, very different decisions of the Commission des relations du travail, the specialized board that hears employment and labour related complaints in Québec.


Langloisv. Gaz Metropolitan

, the Commission rendered a decision on a complaint filed under s. 124 of the Act respecting Labour Standards. In Québec, an employee who has more than two years of uninterrupted services may file a complaint under s. 124 of the act if she believes that she has been dismissed without a good and sufficient cause.

Ms Langlois started working for Gaz Metropolitan in 1991. In 2000, she suffered a cervical hernia which caused her to be absent from work for many months. In November 2000, she started a gradual return to work, which was interrupted in January 2001 due to a surgical procedure.

On Aug. 6, 2001, she returned to work, fearing that she would lose her job if she failed to do so, but after having worked full-time for three days, she realized that she needed a gradual return to work. The employer denied her request.

On Aug. 20, 2001, Ms Langlois resumed work on a full time basis. She worked for four days and then missed work. On Aug. 27, 2001, she was summoned to a meeting with representatives of the employer. She lost her temper, insulted two of the representatives of the employer and locked herself in her office. Due to this incident, Ms Langlois was suspended and her employment with Gaz Metropolitan was terminated on Oct. 1, 2001.

In support of its decision, the employer referred to her unjustified refusal to come back to work, unacceptable attitude, and grave insubordination when faced with legitimate requests by the employer. Ms Langlois argued the employer’s decision not to allow a gradual return to work was discriminatory, as such gradual reintegration would not have caused it undue hardship.

The commission decided that Ms Langlois suffered a handicap caused by her cervical hernia and the employer failed to fulfil its duty to accommodate the special needs of its employee by refusing to agree to a gradual return to work.

In reaching its conclusion that Gaz Metropolitan did not fulfil its legal obligations, the commission referred to typical factors, such as the size of the business and its financial status. According to the commission, even though the presence of an employee in Ms Langlois’ position was essential, Gaz Metropolitan could reasonably have agreed to the temporary accommodation measure she requested without suffering excessive hardship.

The commission ordered the reinstatement of Ms Langlois. The commission rendered another decision regarding duty to accommodate in 2005. In the decision

Anctil v. Industries Maibec Inc,

Mr. Anctil was a production employee working for a wood transformation business.

In 2003, Mr. Anctil was absent from work in order to have hip replacement surgery. He was absent from work until February 2004. After the surgery, the employer received a report prepared by its expert stating that, even though Mr. Anctil did not require additional treatment, he suffered functional limitations.

During the employee’s absence from work, new production methods were implemented. These new methods doubled the production rate but also involved an increase of the rhythm at which work was performed along the production chain.

Upon his return to work, the new production methods were explained and discussed with him by a representative of the employer. Mr. Anctil claimed he suffered hip pain during the first few days following his return to work but that, after that period, he was working as fast as the other employees and did not notice he was working slower than before.

The employer disagreed with that assessment and claimed Mr. Anctil’s failure to work fast enough disrupted the whole production chain, causing stoppages and adding significantly to the employer’s costs. The commission concluded the employer’s decision to terminate the employment of Mr. Anctil was justified under the circumstances, as the accommodation measures that would be required in this case would constitute undue hardship.

The commission also stated that the duty to accommodate does not go as far as to require the employer to create a position with different characteristics, to allow reinstatement of an employee who is unable to occupy his former position. To require an employer to continue employing a person who is not able to provide regular and normal services would constitute undue hardship.


Unfortunately, there is still a lot of uncertainty as to the scope of the employer’s duties, even though a majority of decisions indicate that the employer definitely must accept a financial burden to comply with its duty to accommodate its employees. The employer must also have clear evidence of the cost of the hardship suffered; mere allegations of hardship will not suffice.

Natalie Bussière is a senior associate specializing in labour and employment law in the Montreal office of Blakes, Cassels & Graydon LLP. She can be reached at (514) 982-4080 or at natalie.bussiere@blakes.com.

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