Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2020 SHOULD AN employer proceed with a hir- ing process after learning that a candidate's disability may affect their ability to perform the job safely? The Quebec Court of Appeal considered this issue recently in CDPDJ v. So- ciété de transport de Montréal. The Commission des droits de la personne et des droits de la jeunesse (CDPDJ) claimed that the employer had violated a job candi- date's right to equal access to employment by discriminating against him on the basis of his disability when it terminated the hiring pro- cess with the candidate due to his health con- dition. The Quebec Human Rights Tribunal and the Court of Appeal rejected these claims. In January 2012, the job candidate was in- volved in a road accident, following which he was diagnosed with a lumbar sprain in his back. He went on sick leave and received in- come replacement benefits from the SA AQ (Québec's automobile insurance corpora- tion). After his employer laid him off, he ap- plied for a position as a bus driver with the employer, the Société de transport de Mon- tréal (STM). During the hiring process, the STM con- cluded that the job candidate was medi- cally unfit to work as a bus driver, based on the medical reports prepared following his road accident. These reports demonstrated that the job candidate's medical condition could prevent him from operating the pedals of a bus over the course of a full work shift, thereby exposing the driver and passengers to a significant risk of an accident. After the STM received a new medical certificate that it described as "cryptic" and lacking detail, it reconsidered but eventually upheld its origi- nal decision, terminating the process of hir- ing the worker. After a hearing, the Quebec Human Rights Tribunal upheld the STM's claims, find- ing that there was no discrimination under the Quebec Charter of Human Rights and Freedoms. The tribunal determined that the STM's decision was justified by virtue of an exception in Article 20 of the charter, which states that the exclusion of a candidate based on the aptitudes or qualifications required to perform a job is not discriminatory. The Court of Appeal decision In its analysis, the Quebec Court of Appeal pointed out that in order to successfully invoke this exception, the onus is on the employer to demonstrate that the exclusion of a candidate from a hiring process is based on a specific skill or quality required for this job. In Société de transport de Montréal, the STM demonstrated through medical evidence and by an analysis of the physical require- ments for the position of "driver" that the disability justified its rejection of the job candidate's application. The job candidate could have presented additional medical evi- dence in an attempt to contradict the STM's evidence, but he chose not to do so. Conse- quently, there was no reason for the Court of Appeal to question the STM's analysis and evidence. The court, therefore, sided with the employer, STM. In addition, the Court of Appeal addressed the question of what risk the STM should have to accept as an employer and provider of ser- vices to the public. Since the employer is a car- rier bound by an obligation to bring custom- ers safely to their destination, the court found that the circumstances justified a very low risk tolerance by the employer and ruled that the decision to refuse to hire the complainant was warranted in the circumstances. Employer takeaway This decision confirms the constitutional right of an employer to exclude a disabled candidate from a selection process if the can- didate does not have the necessary skills and qualifications to perform their duties safely and effectively. An employer is not required to make special accommodations in such a situation. It goes without saying that, under the circumstances, the risk of being unable to operate the brake pedal on a crowded bus is severe and not one that an employer can ac- cept. The ability of candidates to adequately perform their duties in a manner that is safe for themselves and the public is undeniably an important factor that employers must always keep in mind when assessing candi- dates during a hiring process. For more information, see: • CDPDJ v. Société de transport de Montréal, 2020 QCCA 602 (Que. C.A.). Discrimination in hiring: What level of risk should an employer assume? Rejecting a job candidate for not having the ability to safely perform the job isn't discrimination: Quebec court BY MARIE-HÉLÈNE JETTÉ AND XAVIER BERWALD-GRÉGOIRE The onus is on the employer to demonstrate that the exclusion of a candidate from a hiring process is based on a specific skill or quality required for this job. ABOUT THE AUTHORS Marie-Hélène Jetté Marie-Hélène Jetté is a partner in the Montréal office of Langlois lawyers and head of the firm's labour and employment law group. She can be reached at (438) 844-7832 or marie-helene.jette@langlois.ca. Xavier Berwald-Grégoire Xavier Berwald-Grégoire is a lawyer in the labour and employment law group at Langlois lawyers in Montreal. He can be reached at (514) 282-7803 or xavier.berwald- gregoire@langlois.ca.

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