This article was prepared with the assistance of Josée Beaudoin, student at Norton Rose Fulbright Canada LLP (Montreal)

Service establishments whose mission is to respond to the needs of a specific group of users may take these needs into account when providing reasonable accommodation.

An arbitral decision determined that a professional requirement with discriminatory effects could be justified by the preferences of the users of public services. Although accompanied by a clear warning concerning its limited scope, this decision opens the door to the application of evaluation criteria adapted to the specific nature of certain establishments.

In this decision, an employee of a health and social services centre (“CSSS”), working as a spiritual care provider and of the Muslim faith, contested as discriminatory the professional requirement that a posted position be filled by someone who was able to administer sacraments and celebrate Catholic rites.  After the departure of a Catholic priest, this employee was not given all of the priest’s hours and assignments, despite his seniority on the availability list. The employer argued that the position’s requirements were based on the needs of its clientèle, whose average age was 83 years and the vast majority of whom were practicing Catholics.

The arbitrator reviewed applicable principles: as has been confirmed by the Supreme Court of Canada, an individual who is a victim of differential treatment because of a standard put in place by his/her employer must provide evidence of the injury suffered and how it is linked to grounds of discrimination under the Quebec Charter of Rights and Freedoms. It then falls to the employer to justify said standard by showing that it has a rational purpose connected to the work in question and that the standard is reasonably necessary so that the employer not experience undue hardship. Where they do not cause undue hardship to the employer, the latter must put in place accommodation measures that respect the worth and dignity of each employee. As a rule, the duty to accommodate can be evaluated, amongst other factors, based on its financial cost to the employer and the rights of the other employees. However, in light of this decision, the mission of the establishment and the type of users to whom it has an obligation to provide services now constitute other factors that the decision-maker may take into consideration.

In light of the evidence before her, the arbitrator ruled that the preferences of the users of a health and social services centre (CSSS), the majority of whom were of the Catholic faith, justified assigning a pastoral assistant of that same faith to provide spiritual care, despite the fact that this undermined other employees’ rights. The CSSS was faced with conflicting rights and obligations: it had to balance not only its users’ right to freedom of religion, but also that of an employee’s right to freedom of religion and to occupy the position to which he was entitled under the collective agreement. In an effort to accommodate the employee, the evidence showed that the CSSS had already given this employee the shifts for spiritual care work that did not require the celebration of Catholic rites and had reduced the number of weekly masses. In light of the CSSS’s limited resources, its right to oversee its own affairs, its legal mandate and especially, the requests of its users, the arbitrator concluded that the CSSS was not required to go any further in its duty to accommodate without experiencing undue hardship and ultimately detracting from its mission.

This decision marks a departure from another earlier case in which the arbitrator decided that a pastoral worker not of the Catholic faith could ensure the spiritual needs of hospital users and that in light of the evidence before him, he could see no rational connection between the requirement that she be of the Catholic faith and her mandate.  However, the arbitrator’s approach in this case is based on a specific context, whereby the needs of the CSSS’s users were central to the legal mandate of the establishment and their preferences involved rights protected under the Quebec  Charter of Rights and Freedoms.  Ultimately, the impact of the needs and wishes of an employer’s clientele may not necessarily be a valid criteria determinative of the scope of an employer’s duty to accommodate, but this decision certainly leaves the door open to this factor.

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