Pursuant to section 10 of Quebec’s Charter of Human Rights and Freedoms (Charter), employers in the province have a duty to provide reasonable accommodation. This requires adapting certain rules, practices and workplace requirements to ensure that a seemingly neutral standard does not exclude or disadvantage an employee on the basis of a Charter-protected ground. However, while important, this duty is not unlimited. Assessing the limits of the duty must take into account the specific circumstances, workplace risks, available organizational resources and the employee’s own duty to cooperate.
Recent case law continues to illustrate how these principles apply in practice. In this bulletin, we examine two recent decisions that offer helpful guidance for employers.
Superior Court of Québec Case
In 1641-9749 Québec inc. c. April (available in French only), the Superior Court of Québec (Court) ruled on the reasonableness of an arbitration award that overturned the dismissal of a heavy truck driver (Employee). The Employee, who had no prior disciplinary record, had been driving while heavily intoxicated and caused a major accident. She then admitted to her employer that she suffered from alcoholism, leading the arbitrator to conclude that the employer had failed in its duty to accommodate.
Following a rigorous analysis, the Court determined that the Employee’s misconduct was severe. The position held by the Employee required constant vigilance and reliability due to the inherent risks of heavy-haul transportation. The accident could not be attributed simply to negligence or a stress- or fatigue-related error; it was a serious incident that jeopardized public safety, as well as that of the Employee and her colleagues. Given these circumstances, the zero-tolerance policy set out in the employer’s collective agreement took on its full meaning. It applied uniformly to all employees, without distinction. As such, the Court rejected the notion that accommodation should take precedence over an essential safety rule.
The Court also highlighted that the duty to accommodate presupposes differential treatment based on a prohibited ground. In this case, the evidence showed that any employee would have been dismissed for misconduct of the same nature, whether or not they suffered from alcoholism. The Employee was therefore not punished because of her impairment, but because of the objective severity of her misconduct. The Court added that the employer had no duty to accommodate the Employee retroactively once the misconduct had occurred, particularly given that the employer was unaware of the Employee’s impairment prior to the incident. To accept such an interpretation would effectively excuse conduct that is dangerous or incompatible with the requirements of a position, simply on the basis that an impairment is disclosed after the fact.
In this context, the Court held that the arbitration award was unreasonable and was to be set aside. The Employee’s dismissal was therefore upheld.
Arbitral Tribunal Case
In Syndicat des professionnelles et professionnels en milieu scolaire du Nord-Ouest (SPPMSNO) c. Commission scolaire Crie (Louise Ostiguy) (available in French only), an arbitral tribunal (Tribunal) considered a claim brought by a guidance counsellor working with Indigenous students transitioning to a new school environment in Montréal, many of whom experience distress. The complainant, who was the only guidance counsellor working with these students in Montréal, developed a serious medical condition that limited her physical abilities. She requested permission to carry out her duties remotely on a permanent basis. Her employer refused, stating that doing so would result in undue hardship.
Following a detailed analysis of the guidance counsellor’s position, the Tribunal found that, while certain tasks could be performed remotely, an essential component of the position relied on direct, in-person intervention. In-person presence allows for human contact, which is key to supporting students facing hardship or difficulty adjusting to a new environment. The Tribunal emphasized that, in this context, it was important to establish a helping and trusting relationship with the students, to be immediately available to them, and to make them feel welcome, all of which could not be guaranteed through permanent remote work. As such, in-person presence was deemed a justified professional requirement of the role in question.
The Tribunal then examined the question of reasonable accommodation. Several options had been considered, including various transportation solutions. The complainant had been approved for paratransit, which was accessible and compatible with her medical limitations, but she chose not to inform the employer or the union, arbitrarily determining that the travel time would be too long. The Tribunal found this omission significant, as the employer could not evaluate all possible measures without the relevant information. The accommodation process requires the employee’s active collaboration.
Moreover, the Tribunal found that remote work on a full-time basis and for an indefinite duration, as requested by the complainant, would substantially modify the organization of the workplace by removing an essential on-site resource. It therefore did not constitute reasonable accommodation, as it would result in undue hardship for the employer. The grievance was dismissed.
Key Takeaways
These two decisions provide complementary examples of the limits and requirements of Quebec’s reasonable accommodation framework. The first reminds us that accommodation cannot be used to neutralize the consequences of serious misconduct, particularly when such misconduct jeopardizes safety and would have resulted in the same treatment for any other employee. The second reaffirms that the duty to accommodate is a shared process involving the active collaboration of the employee and a rigorous assessment of the requested accommodation’s impact on the organization. Together, these decisions remind employers that, while accommodation remains an essential tool for promoting inclusion and meeting legal obligations, it must be exercised within a balanced framework that respects the organization’s capabilities, mission and safety imperatives.
For more information, please contact the authors or any other member of our Employment & Labour group.
