Court of Appeal of Quebec

Commission des droits de la personne et des droits de la jeunesse (Bencheqroun) c. Société de transport de Montréal

500-09-027655-182

Thibault, Mainville, Hogue

Appeal from a judgment of the Human Rights Tribunal dismissing an application to institute proceedings for discrimination. Dismissed.

The Commission des droits de la personne et des droits de la jeunesse (CDPDJ) appeals from a judgment of the Human Rights Tribunal (HRT) that dismissed its proceeding against the employer, the Société de transport de Montréal. The CDPDJ submits that the employer infringed the complainant’s right to equal access to employment without discrimination based on handicap by terminating the process to hire him as a bus driver for health reasons.

In accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov (S.C. Can., 2019-12-19), 2019 SCC 65, SOQUIJ AZ-51654335, 2020EXP-27, appellate is the applicable standard of review. Therefore, the standard of correctness generally applies to a question of law whereas the standard of palpable and overriding error applies to a question of fact or a question of mixed law and fact when a question of law cannot be extricated. This matter involves questions of fact, or at most questions on the burden of proof.

The HRT correctly stated that it was for the employer to establish, on a balance of probabilities, that it did not violate the Charter of human rights and freedoms (CQLR, c. C-12). Based in particular on the medical evidence, it established the physical requirements for the position. It further established that the requirements had been determined in good faith to protect the safety of employees, travellers and the public, and that the complainant failed to meet the requirements. The HRT did not err in assessing the employer’s evidence. The CDPDJ also faults the HRT for failing to assess the level of safety sought by the employer, for accepting the risk per se as justification for the discrimination rather than a serious or undue risk, and for failing to consider the quality of the evidence required for these purposes. These grounds of appeal are rejected. It can be inferred from the HRT’s statements that it concluded that the risk tolerated was very low given the employer’s legal obligations. The HRT’s judgment reveals that it considered the fact that a bus driver could not at all times work the pedals on a bus used for public transportation to be a serious risk. A road accident is an unacceptable risk.

Last, the HRT’s conclusion that there was a safety risk was not based on “impressionistic” evidence. It was instead based on the testimony of a physician, who thoroughly described the dangers presented by the complainant’s functional limitations. The case law does not require employers to adduce any type of evidence in particular, such as statistical evidence, to establish a risk. It all depends on the context. As the HRT concluded, the testimony of the employer’s physician was sufficient to establish that the risk was not based on preconceived ideas.

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca

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