Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665
City of Montréal and Communauté urbaine de Montréal Appellants
v.
Commission des droits de la personne et
des droits de la jeunesse Respondent
and
Réjeanne Mercier Mis en cause
and between
City of Boisbriand and Communauté urbaine de Montréal Appellants
v.
Commission des droits de la personne et
des droits de la jeunesse Respondent
and
Palmerino Troilo Mis en cause
Indexed as: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City)
Neutral citation: 2000 SCC 27.
File No.: 26583.
1999: November 8; 2000: May 3.
Present: L’Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for quebec
Civil rights — Right to equality -- Handicap — Employment — Subjective perception of handicap — Physical anomaly not resulting in functional limitation — Meaning of word “handicap” — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 10, 16.
The City of Montréal refused to hire M as a gardener-horticulturalist, and the CUM refused to hire H as a police officer, because the pre-employment medical exam in both cases revealed an anomaly of the spinal column. The City of Boisbriand dismissed T from his position as a police officer because he suffered from Crohn’s disease. The medical evidence in each case indicated that the individuals could perform the normal duties of the position in question and that they had no functional limitations. All three filed complaints with the Commission des droits de la personne et des droits de la jeunesse, alleging that the appellants had discriminated against them on the basis of handicap. After conducting its investigation, the Commission applied to the Tribunal des droits de la personne. In the cases of M and T, Judge Brossard rejected the notion that a handicap could be perceived subjectively. He held that M and T had no remedy under s. 10 of the Quebec Charter of Human Rights and Freedoms (“Charter”) because they did not meet the definition of handicap as their anomalies did not result in functional limitations. In H’s case, Judge Rivet found that the assessment of a handicap could be objective or purely subjective. She therefore concluded that the CUM’s exclusionary policy and its decision not to hire were contrary to ss. 10 and 16 of the Charter. The decisions of the Tribunal in the cases of M and T were appealed and the CUM, whose appeal in the H case was pending in the Court of Appeal, was given leave to intervene. The Court of Appeal reversed the decisions of the Tribunal and held that M and T had been victims of discriminatory exclusion. The CUM’s intervention was dismissed.
Held: The appeal should be dismissed.
The Charter does not define the ground “handicap”, and the word’s ordinary meaning is not clear from the various dictionary definitions. Given its quasi-constitutional nature, the Charter must be interpreted in light of both its context and its objectives. The rules of interpretation do not support the argument that the word “handicap” means a physical or mental anomaly that necessarily results in functional limitations. A liberal and purposive interpretation and a contextual approach support a broad definition of the word “handicap”, which does not necessitate the presence of functional limitations and which recognizes the subjective component of any discrimination based on this ground.
The ground “handicap” must not be confined within a narrow definition that leaves no room for flexibility. Instead, courts should adopt a multidimensional approach that considers the socio-political dimension of “handicap”. The emphasis is on human dignity, respect and the right to equality rather than merely on the biomedical condition. A handicap may be real or perceived, and a person may have no limitations in everyday activities other than those created by prejudice and stereotypes. Courts will, therefore, have to consider not only an individual’s biomedical condition, but also the circumstances in which a distinction is made. A “handicap” may exist even without proof of physical limitations or other ailments. The emphasis is on the effects of the distinction, exclusion or preference rather than the precise cause or origin of the handicap.
All distinctions based on “handicap” are not necessarily discriminatory. In the present case, the employers acknowledge the causal connection between the complainants’ conditions and the dismissal or refusal to hire. However, in most cases, the applicants will have the burden of proving (1) the existence of a distinction, exclusion or preference, (2) that the distinction, exclusion or preference is based on a ground enumerated in s. 10 of the Charter and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal exercise of human rights and freedoms. Under s. 20 of the Charter, the onus is on the employer to demonstrate that the impugned measure is justified because it is based on aptitudes or qualifications required for the job.
Based on this analysis, and given the facts in these cases, there was discrimination against M and T based on handicap for the purposes of s. 10 of the Charter. Accordingly, the judgments of the Court of Appeal are affirmed. The cases of M and T are referred to the Tribunal des droits de la personne for a decision as to whether the measures of the cities of Montréal and of Boisbriand can be justified. H’s case is returned to the Court of Appeal, in order that the matter be decided in light of this judgment.
Cases Cited
Referred to: Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; R. v. Hess, [1990] 2 S.C.R. 906; R. v. S. (S.), [1990] 2 S.C.R. 254; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; Adler v. Ontario, [1996] 3 S.C.R. 609; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Vriend v. Alberta, [1998] 1 S.C.R. 493; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Labelle v. Air Canada (1983), 4 C.H.R.R. D/1311; De Jong v. Horlacher Holdings Ltd. (1989), 10 C.H.R.R. D/6283; Matlock v. Canora Holdings Ltd. (1983), 4 C.H.R.R. D/1576; St. Thomas v. Canada (Armed Forces) (1991), 14 C.H.R.R. D/301; Davison v. St. Paul Lutheran Home of Melville, Saskatchewan (1992), 15 C.H.R.R. D/81; Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259; Bahlsen v. Canada (Minister of Transport), [1997] 1 F.C. 800; Cinq-Mars v. Transports Provost Inc. (1988), 9 C.H.R.R. D/4704; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; Commission des droits de la personne du Québec v. Ville de Laval, [1983] C.S. 961; Commission des droits de la personne du Québec v. Paquet, [1981] C.P. 78; Commission des droits de la personne du Québec v. Héroux (1981), 2 C.H.R.R. D/388; Commission des droits de la personne du Québec v. Côte St-Luc (Cité de), [1982] C.S. 795; Huppe v. Régie de l’assurance-automobile du Québec, J.E. 84-303; Commission des droits de la personne du Québec v. Montréal-Nord (Ville de), [1990] R.J.Q. 2765; Commission des droits de la personne du Québec v. Brasserie O’Keefe Ltée, Sup. Ct. Mtl., No. 500-05-005826-878, September 13, 1990; Québec (Commission des droits de la personne) v. Montréal (Communauté urbaine) (1992), 16 C.H.R.R. D/141; Québec (Commission des droits de la personne) v. Lessard, Beaucage, Lemieux Inc. (1992), 19 C.H.R.R. D/441; Commission des droits de la personne du Québec v. Montréal (Ville de), D.T.E. 94T-600; Commission des droits de la personne du Québec v. Ville de Montréal, [1994] R.J.Q. 2097; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868.
Statutes and Regulations Cited
Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, s. 3.
Act to secure the handicapped in the exercise of their rights, S.Q. 1978, c. 7 [now R.S.Q., c. E-20.1], ss. 1(g), 112.
Canadian Charter of Rights and Freedoms, s. 15(1).
Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 3(1) [repl. 1996, c. 14, s. 2].
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, preamble, ss. 10 [am. 1978, c. 7, s. 112; am. 1980, c. 11 s. 34; am. 1982, c. 61, s. 3], 16, 20 [am. 1982, c. 61, s. 6; am. 1996, c. 10, s. 1], 20.1 [ad. 1996, c. 10, s. 2], 49, 57 [repl. 1995, c. 27, s. 2], 71 [repl. 1989, c. 51, s. 5], 74 [idem], 78 [idem], 80 [idem], 84 [idem].
Fair Practices Act, R.S.N.W.T. 1988, c. F-2, s. 3.
Human Rights Act, R.S.N.S. 1989, c. 214, s. 3(l) [rep. & sub. 1991, c. 12, s. 1].
Human Rights Act, R.S.P.E.I. 1988, c. H-12, s. 1(1)(l).
Human Rights Code, R.S.O. 1990, c. H.19, s. 2.
Human Rights Code, S.M. 1987-88, c. 45, C.C.S.M., c. H175, s. 9(2)(l).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171.
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3.
Interpretation Act, R.S.Q., c. I-16, s. 40.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 (1948), 71.
Authors Cited
Abella, Rosalie S. Report of the Commission on Equality in Employment. Ottawa: Supply and Services Canada, 1984.
Bickenbach, Jerome E. Physical Disability and Social Policy. Toronto: University of Toronto Press, 1993.
Brun, Henri, et Guy Tremblay. Droit constitutionnel, 3e éd. Cowansville, Qué.: Yvon Blais, 1997.
Côté, Pierre-André. Interprétation des lois, 3e éd. Montréal: Thémis, 1999.
Lepofsky, M. David, and Jerome E. Bickenbach. “Equality Rights and the Physically Handicapped”. In Anne F. Bayefsky and Mary Eberts, eds., Equality Rights and the Canadian Charter of Rights and Freedoms. Toronto: Carswell, 1985, 323.
McKenna, Ian B. “Legal Rights for Persons with Disabilities in Canada: Can the Impasse Be Resolved?” (1997-98), 29 Ottawa L. Rev. 153.
Proulx, Daniel. “La discrimination fondée sur le handicap: étude comparée de la Charte québécoise” (1996), 56 R. du B. 317.
Québec. Assemblée nationale. Commission permanente de la justice. Étude des projets de loi nos 101, 219, 260, 254, 262, 269, 278, 221 et 86 -- Loi modifiant la Charte des droits et libertés de la personne. Journal des débats: Commissions parlementaires, 3e sess., 32e lég., no 230, 16 décembre 1982, pp. B-11626, B-11627.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
United Nations. World Programme of Action concerning Disabled Persons, G.A. Res. 37/52, 90th Plenary Session, December 3, 1982.
World Health Organization. International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Disease. Geneva: The Organization, 1980.
APPEAL from judgments of the Quebec Court of Appeal, [1998] R.J.Q. 688, 33 C.H.R.R. D/149, 36 C.C.E.L. (2d) 196, [1998] Q.J. No. 369 (QL), reversing the judgments of the Tribunal des droits de la personne (1995), 25 C.H.R.R. D/407 and D/412, [1995] J.T.D.P.Q. No. 4 and No. 5 (QL). Appeal dismissed.
Diane Lafond, for the appellant the City of Montréal.
Guy Lemay, Odette Jobin-Laberge and Yann Bernard, for the appellant the City of Boisbriand.
Pierre-Yves Boisvert, for the appellant the Communauté urbaine de Montréal.
Béatrice Vizkelety, for the respondent.
Jean-René Maranda, for the mis en cause Réjeanne Mercier.
English version of the judgment of the Court delivered by
1 L’Heureux-Dubé J. -- The appeal before us concerns three cases, each of which involve the interpretation of s. 10 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (“Charter”). The employee and the applicants for employment affected by this appeal (“employees”) have physical anomalies that do not result in functional limitations for the purposes of the employment in question. They were nevertheless denied employment on the basis of these physical anomalies. The issue in this case is whether these persons have a “handicap” within the meaning of s. 10 of the Charter. Depending on how this term is interpreted, the employees in question will either enjoy or be denied a remedy under the Charter.
I. Facts
2 The employees Mercier, Troilo and Hamon all filed complaints with the Commission des droits de la personne et des droits de la jeunesse (“Commission”) on the basis that the appellants had infringed their right to equality in employment.
3 The facts, which were uncontested, were set out by Mr. Justice Jacques Philippon, who delivered the unanimous judgment of the Quebec Court of Appeal. I quote:
[translation]
The Mercier Case
This case began in May 1992, when the City refused to hire the complainant as a gardener-horticulturist, even though she had successfully completed her training in this field.
Following a pre-employment medical exam in April of that year, the complainant was advised that the City believed she was unable to assume these duties because of an anomaly in her spinal column, a minor thoracolumbar scoliosis. The City was concerned about the possibility of her developing lower back pain, even though the complainant had never suffered any lower back pain or had a serious injury. In fact, she did not feel any discomfort or have any symptoms, nor did she have any disability or limitations in performing her normal activities.
However, two other medical assessments which were conducted on behalf of the complainant and the City, respectively, found that she was perfectly able to perform the duties related to the position she was seeking. The City indicated that the recommendation to hire the complainant was made in 1994, after the first medical expert consulted changed the initial recommendation regarding the complainant’s ability to perform the duties of a gardener-horticulturist.
In July 1994, the doctors most involved in the case agreed that “this young patient does not have a greater potential risk of low back pain in the short-, medium- or even long-term” and that “we expect this patient will be able to perform her work at normal levels”.
In principle, the City then agreed to hire the complainant as a gardener, subject to an agreement on financial matters. No such agreement was reached. The parties intended to submit these matters to Judge Brossard, who instead dismissed the application on the grounds that the appellant had not established that the complainant’s exclusion was based on a handicap within the meaning of s. 10.
The Troilo case
In February 1990, after successfully completing the pre-employment medical exam, Palmerino Troilo (hereinafter the “complainant”) was hired as a police officer by the municipality of Boisbriand (hereinafter “Boisbriand”), subject to a probationary period of 12 months. He performed his duties very well indeed, with excellent results until May 22, when he was absent for a period of time because of an acute attack of ileitis followed by a fistula (perforation of the intestine), which was treated surgically.
It was then discovered that the complainant has a chronic inflammation of the intestine, known as “Crohn’s disease”. For unknown reasons, this disease affects certain parts of the digestive tract; it is a chronic disease which is aggravated by stress, among other factors. The severity varies for each individual; for some it may remain benign while others may require several operations.
All of the medical reports written after the complainant’s recovery attest that he is in good health and that, as he is asymptomatic, the complainant is able to perform the short and medium term duties of a police officer. Boisbriand nevertheless dismissed him in August 1990. It preferred, instead, to minimize potential costs by filling its complement of permanent employees with police officers who present the lowest risk of absenteeism.
The Commission is therefore appealing on the ground that Boisbriand discriminated against the complainant on the basis of handicap. The complainant has been working as a police officer for the City de Boucherville since January 1991.
The Hamon Case
There are definite similarities between the facts and the main issue raised in this case and in the appeals before the Court. The complainant, Jean-Marc Hamon, was not hired as a police officer by the Communauté urbaine de Montréal on the ground there are anomalies to his spinal column (bilateral spondylolosis and spondylolisthesis L5/S1). Hamon’s condition is asymptomatic and the employer admits that the complainant does not have any resulting discomfort, disability or limitation. Although the CUM does not consider this condition to be a handicap within the meaning of the Quebec Charter, it justifies its general policy of excluding such people on the grounds that, in performing their duties as police officers, there is a risk that they will develop incapacitating and recurrent lower back pain.
II. Statutory Provisions
4 The following provisions are relevant to this appeal:
Charter of Human Rights and Freedoms, R.S.Q., c. C-12
10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on 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.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.
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.
20. A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.
20.1 In an insurance or pension contract, a social benefits plan, a retirement, pension or insurance plan, or a public pension or public insurance plan, a distinction, exclusion or preference based on age, sex or civil status is deemed non-discriminatory where the use thereof is warranted and the basis therefor is a risk determination factor based on actuarial data.
In such contracts or plans, the use of health as a risk determination factor does not constitute discrimination within the meaning of section 10.
49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
. . .
57. A body, hereinafter called “the commission”, is established under the name of “Commission des droits de la personne et des droits de la jeunesse”.
The mission of the commission is to ensure that the principles set forth in this Chapter are upheld, that the interests of children are protected and that their rights recognized by the Youth Protection Act (chapter P-34.1) are respected; for such purposes, the commission shall exercise the functions and powers conferred on it by this Charter and the Youth Protection Act.
71. The commission shall promote and uphold, by every appropriate measure, the principles enunciated in this Charter.
. . .
74. Any person who believes he has been the victim of a violation of rights that is within the sphere of investigation of the commission may file a complaint with the commission. If several persons believe they have suffered a violation of their rights in similar circumstances, they may form a group to file a complaint.
. . .
78. The commission shall seek, in respect of every situation reported in the complaint or revealed in the course of the investigation, any evidence allowing it to decide whether it is expedient to foster the negotiation of a settlement between the parties, to propose the submission of the dispute to arbitration or to refer any unsettled issue to a tribunal.
. . .
80. Where the parties will not agree to negotiation of a settlement or to arbitration of the dispute or where the proposal of the commission has not been implemented to its satisfaction within the allotted time, the commission may apply to a tribunal to obtain, where consistent with the public interest, any appropriate measure against the person at fault or to demand, in favour of the victim, any measure of redress it considers appropriate at that time.
84. Where, following the filing of a complaint, the commission exercises its discretionary power not to submit an application to a tribunal to pursue, for a person’s benefit, a remedy provided for in sections 80 to 82, it shall notify the complainant of its decision, stating the reasons on which it is based.
Within 90 days after he receives such notification, the complainant may, at his own expense, submit an application to the Human Rights Tribunal to pursue such remedy and, in that case, he is, for the pursuit of the remedy, substituted by operation of law for the commission with the same effects as if the remedy had been pursued by the commission.
Canadian Charter of Rights and Freedoms
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
An Act to secure the handicapped in the exercise of their rights, S.Q. 1978, c. 7 (now R.S.Q., c. E-20.1)
1. In this act, unless otherwise indicated by the context,
. . . (g) “handicapped person”, or “the handicapped” in the plural, means a person limited in the performance of normal activities who is suffering, significantly and permanently, from a physical or mental deficiency, or who regularly uses a prosthesis or an orthopedic device or any other means of palliating his handicap.
III. Previous Proceedings, Decisions and Judgments
5 The Commission was constituted by s. 57 of the Charter. The function of the Commission is inter alia to ensure that the principles set out in the Charter are promoted and respected. The Commission may do so either of its own initiative or in response to a complaint: Charter, s. 71. In dealing with a complaint, the Commission decides whether to promote negotiation of a settlement between the parties, to propose arbitration of the dispute, or to refer unsettled issues to a tribunal: Charter, s. 78. If the dispute is referred to the Human Rights Tribunal, the Commission, or the complainant in the case contemplated by s. 84, brings the matter before the Tribunal.
6 The Commission received Ms. Mercier’s complaint on September 18, 1992. After conducting its investigation, the Commission referred Ms. Mercier’s complaint to the Human Rights Tribunal, applying to that Tribunal in May 1994.
7 The same procedures were followed with respect to Mr. Troilo’s complaint. The Commission applied to the Human Rights Tribunal on July 7, 1994, in response to Mr. Troilo’s complaint, which had been filed with the Commission on August 12, 1990.
8 Regarding the third case, Mr. Hamon filed a complaint with the Commission on October 1, 1990. After conducting its investigation, the Commission applied to the Human Rights Tribunal on August 26, 1994. For our purposes, the Hamon case is relevant because the defendant in Hamon, the Communauté urbaine de Montréal (“CUM”), intervened before the Quebec Court of Appeal in Mercier and Troilo, and appealed the Quebec Court of Appeal’s decision dismissing its intervention before this Court.
(a) Human Rights Tribunal
Québec (Commission des droits de la personne) et Troilo v. Boisbriand (Ville) (1995), 25 C.H.R.R. D/412 (“Troilo”)
Québec (Commission des droits de la personne) et Mercier v. Montréal (Ville) (1995), 25 C.H.R.R. D/407 (“Mercier”)
Québec (Commission des droits de la personne) et Hamon v. Montréal (Communauté urbaine) (1996), 26 C.H.R.R. D/466 (“Hamon”)
9 Judge Brossard of the Human Rights Tribunal presided over Mercier and Troilo and Madame Judge Rivet, the President of the Tribunal, presided over Hamon.
(i) The Reasons of Judge Brossard
10 The reasons in Mercier and Troilo are practically identical. In Mercier, Judge Brossard accepted the medical evidence that the anomaly did not lead to any functional limitation in the context of the position sought. Although the judge accepted that the scoliosis was the basis for the refusal to hire Ms. Mercier, he stated that the employer was entitled to refuse Ms. Mercier’s application and choose a candidate who was in better health.
11 In Troilo, the analysis of the complainant’s physical condition was slightly more involved because he had been absent from work due to a fistula, caused by Crohn’s disease, and was treated surgically. The employer in fact terminated Mr. Troilo’s employment on the basis that he had a recurring disease. Once again, even though Judge Brossard accepted the medical evidence that Mr. Troilo’s condition created no specific limitations or difficulties in the performance of his work, he dismissed the Commission’s application.
12 In both cases, Judge Brossard rejected the notion that a handicap could be subjectively perceived. Even though a subjective perception is specifically included in the legislation of other provinces such as Ontario and Nova Scotia, he found this concept to be foreign to s. 10 of the Charter.
[translation] The Quebec legislature has neither used the concept of disability, nor defined handicap such that a handicap need only be perceived, even absent any functional limitation. Accordingly, this word should be given its usual meaning, that is its meaning in ordinary speech. At the same time courts must favour a purposive interpretation of the Charter that recognizes the integration of people with disabilities into society as one of the Charter’s many goals.
(Troilo, at p. D/416, and Mercier, at p. D/410)
13 Although Judge Brossard recognized that the complainants in both of these cases were denied employment because of a subjective perception of their handicaps, he found that without functional limitations, the complainants had no remedy under s. 10 of the Charter. Finally, Judge Brossard pointed out that a person’s state of health cannot be a “handicap” because, in his view, this interpretation would trivialize the Charter:
[translation] . . . to extend the concept of “handicap” to include an anomaly [or an illness] that does not involve any limitation would be to trivialize s. 10 of the Charter, which was enacted to protect those people who are limited in the performance of everyday activities.
(Troilo, at p. D/416, and Mercier, at p. D/410)
14 Judge Brossard concluded that while Ms. Mercier and Mr. Troilo have physical anomalies, they do not have handicaps for the purposes of s. 10 of the Charter because they do not suffer from a disadvantage or disability that results in a functional limitation.
(ii) The Reasons of Judge Rivet
15 In Hamon, Judge Rivet found that Mr. Hamon was in excellent health, and that the anomaly in his case did not result in any functional limitations. Relying mainly on the 1982 amendment to s. 10 of the Charter and on the different objectives of the Charter and An Act to secure the handicapped in the exercise of their rights, Judge Rivet concluded that the employer’s exclusionary policy and its decision not to hire were covered by ss. 10 and 16 of the Charter (at p. D/474):
[translation] In the context of the Charter, a broad interpretation of the term handicap is justified by the fact that the objectives of this human rights instrument are broader than the objectives of An Act to secure the handicapped in the exercise of their rights.
16 In her view, limitations attributed in error, which are included in the concept of handicap, are really associated not with the persons to whom they are attributed, but rather with the exercise of a right protected by the Charter. To conclude otherwise, according to Judge Rivet, would undermine the goal of prohibiting discrimination. She therefore held that under s. 10 of the Charter, the identification or assessment of a handicap could be objective or purely subjective. She stated (at p. D/474):
[translation] A more restrictive interpretation would deprive persons with an anomaly of the protection of the Charter since the exclusion is due to another person’s perception of their ability to exercise a right, and is precisely based on the anomaly.
17 For these reasons, Judge Rivet held that the exclusion of Mr. Hamon was based on handicap, contrary to s. 10 of the Charter, and that the CUM’s refusal to consider his application for the position constituted discrimination that was not justified under s. 20 of the Charter.
(b) Quebec Court of Appeal, [1998] R.J.Q. 688
18 Mercier and Troilo were appealed to the Quebec Court of Appeal. The CUM also appealed Judge Rivet’s decision in Hamon, and was granted leave to intervene in Mercier and Troilo, which were already before the Court of Appeal. The CUM, whose intervention was dismissed by the Court of Appeal, appealed that decision before this Court.
19 Philippon J. (ad hoc) wrote the Quebec Court of Appeal’s reasons in this case. In a very extensive judgment, Philippon J. provided a detailed analysis of the notion of handicap. First, he reviewed the applicable principles of interpretation. Relying on the liberal and purposive method of interpretation, he interpreted the term “handicap” broadly. In his view, interpretations of the Charter must always be consistent with constitutional standards, including those set out in the Canadian Charter of Rights and Freedoms (“Canadian Charter”). Thus, it is helpful to refer to similar provisions in provincial human rights codes, despite differences in terminology.
20 Philippon J. then examined the legislative history of the Charter and of handicap as a prohibited ground of discrimination. He noted that before the Charter was amended in 1982, although subjective perceptions were relevant considerations regarding the other grounds of discrimination set out in s. 10, they could not be considered in the context of a handicap. Between 1978 and 1982, the Charter protected every person against discrimination based on the “the fact that he is a handicapped person or that he uses any means to palliate his handicap”. In 1982, the legislature replaced this phrase with “a handicap or the use of any means to palliate a handicap”. Philippon J. observed that since this amendment, the Quebec courts have consistently recognized that both objective reality and subjective perception are integral parts of the concept of handicap.
21 Philippon J. then considered the definition of handicap. He referred to case law and literature, but declined to adopt a strict definition of the concept of handicap. He stated (at p. 709):
[translation] However useful and relevant they may be, these clarifications do not in our view, lead to an infallibly precise identification of the issues, which, because of subtle distinctions, will continue to be raised in certain less obvious cases. In my view, as illness is so broad and its meaning so varied, I cannot rule out health.
22 Without providing an exhaustive definition of handicap, Philippon J. cited inter alia the following passage from “La discrimination fondée sur le handicap: étude comparée de la Charte québécoise” (1996), 56 R. du B. 317, at p. 422, by Professor D. Proulx, where he states that a handicap:
[translation] . . . may take the form of a loss, malformation or abnormality of an organ, a structure or an anatomical, physiological, psychological or mental function. Such an anomaly is therefore an abnormal physical or mental condition, one which does not conform to a standard, a model or a general rule. The effect of this condition is to make an individual unique or conspicuous. . . . [T]he cause of the anomaly which creates the handicap is immaterial. It may therefore have been present at birth (congenital cause) or arisen later, for example because of accident, illness or aging.
23 As to the requirements of ss. 10 and 20 of the Charter, Philippon J. stated that in order to prove the existence of a handicap, the complainant is not required to provide evidence of actual limitations or disabilities associated with the identified anomaly. Rather, this proof is required at the second step of the analysis, pursuant to s. 20, when the onus is on the employer to justify the exclusion (at p. 710):
[translation] It is only at the second step that evidence regarding the person’s actual limitations which prevent him or her from performing the normal duties must be provided. At the first step, and applying these principles to the cases before the Court, the complainants are not required to produce evidence other than what was essentially provided by the employers’ medical experts, which indicates that the complainants have anomalies and that these anomalies are the basis for the infringement of their right to equality in employment. It should be noted that while medical evidence of this kind will undoubtedly be required in most cases, it will probably not be necessary in clear-cut cases.
In any event, the complainant is not required to prove that his or her ability to perform the duties of a position or occupation is limited. It is the employer who must justify the exclusion at the second step, under s. 20.
24 For the above reasons, Philippon J. concluded that Ms. Mercier and Mr. Troilo were victims of discriminatory exclusion within the meaning of s. 10 of the Charter. Accordingly, he reversed the Judge Brossard’s judgments and ordered that both cases be returned to the tribunal of first instance for a decision regarding s. 20 of the Charter, where the onus is on the employer to justify the exclusion. Philippon J. dismissed the intervention of the CUM, although the CUM’s appeal remains pending before the Court of Appeal.
IV. Issue
25 As I stated at the outset, the only issue is the interpretation of s. 10 of the Charter.
V. Analysis
(a) Principles of Interpretation
26 The Charter does not define the term “handicap” and the word’s ordinary meaning is not clear from the various dictionary definitions. It seems that “handicap” can have a vague or very broad meaning. Therefore, as this appeal is essentially an exercise in interpretation, we must first review certain principles that apply in this situation.
27 As Philippon J. pointed out, given its fundamental and quasi-constitutional status, human rights legislation prevails over other legislation. That principle has been reiterated by this Court on several occasions: Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. The Court has also held that because of its quasi-constitutional status, the Charter must be interpreted in light of both its context and objectives: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Robichaud v. Canada (Treasury Board), supra; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.
28 Accordingly, in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, at para. 116, Gonthier J. wrote the following on the subject of the Quebec Charter:
Like the statutes that are its counterparts in the other provinces, the Charter, which was enacted in 1975, has a special quasi-constitutional status. Certain of its provisions thus have relative primacy, resulting from s. 52. By its very nature, such a statute calls for a large and liberal interpretation that allows its objectives to be achieved as far as possible. In this sense, not only the provisions at issue but the entire statute must be examined (see in this regard Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 547).
29 More generally, in Driedger on the Construction of Statutes (3rd ed. 1994), at pp. 383-84, Professor R. Sullivan summarized as follows the rules of interpretation that apply to human rights legislation:
(1) Human rights legislation is given a liberal and purposive interpretation. Protected rights receive a broad interpretation, while exceptions and defences are narrowly construed.
(2) In responding to general terms and concepts, the approach is organic and flexible. The key provisions of the legislation are adapted not only to changing social conditions but also to evolving conceptions of human rights.
. . .
In this regard, see also Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321.
30 This Court has repeatedly stressed that it is inappropriate to rely solely on a strictly grammatical analysis, particularly with respect to the interpretation of legislation which is constitutional or quasi-constitutional in nature: Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., supra.
31 The courts are increasingly recognizing that all statutes, whether or not they are constitutional in nature, must be interpreted contextually. P.-A. Côté, Interprétation des lois (3rd ed. 1999), stated at pp. 355-56:
[translation] Without going so far as to say that words have no intrinsic meaning, their dependence on context for real meaning must be recognized. A dictionary provides a limited assortment of potential meanings, but only within the context is the effective meaning revealed. . . .
See also Sullivan, supra, at p. 3.
32 Thus, as this Court stated in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21-23, it is appropriate to consider the legislative context. According to Côté, supra, at pp. 355-56, the context of a law includes the other provisions of the law, related statutes, the objective of both the law and the specific provision, as well as the circumstances which led to the drafting of the text.
(i) Objectives of the Charter
33 The preamble of a statute often provides a good indication of that statute’s objectives: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., supra; Interpretation Act, R.S.Q., c. I-16, s. 40. Thus, in the case at bar, it is helpful to examine the following three paragraphs of the preamble to the Charter:
WHEREAS every human being possesses intrinsic rights and freedoms designed to ensure his protection and development;
Whereas all human beings are equal in worth and dignity, and are entitled to equal protection of the law;
Whereas respect for the dignity of the human being and recognition of his rights and freedoms constitute the foundation of justice and peace;
34 The preamble suggests that the Charter’s objective is to protect the dignity and equality rights of all human beings and, by logical extension, to eliminate discrimination. McIntyre J. first made the connection between these concepts in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 172, when he said, “Discrimination is unacceptable in a democratic society because it epitomizes the worst effects of the denial of equality . . .”.
35 It was also in Andrews v. Law Society of British Columbia, at pp. 174-75, that McIntyre J. described discrimination as follows:
. . . [it is] a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
Since then, this passage has been cited in the vast majority of the decisions of this Court dealing with discrimination: Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; R. v. Hess, [1990] 2 S.C.R. 906; R. v. S. (S.), [1990] 2 S.C.R. 254; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; Adler v. Ontario, [1996] 3 S.C.R. 609; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Vriend v. Alberta, [1998] 1 S.C.R. 493; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
36 The purpose of Canadian human rights legislation is to protect against discrimination and to guarantee rights and freedoms. With respect to employment, its more specific objective is to eliminate exclusion that is arbitrary and based on preconceived ideas concerning personal characteristics which, when the duty to accommodate is taken into account, do not affect a person’s ability to do a job.
37 In the following passage from the Report of the Commission on Equality in Employment (1984) (also called the “Abella Report”), at p. 2, the Commission eloquently explained that:
Equality in employment means that no one is denied opportunities for reasons that have nothing to do with inherent ability. It means equal access free from arbitrary obstructions. Discrimination means that an arbitrary barrier stands between a person’s ability and his or her opportunity to demonstrate it. If the access is genuinely available in a way that permits everyone who so wishes the opportunity to fully develop his or her potential, we have achieved a kind of equality. It is equality defined as equal freedom from discrimination.
Discrimination in this context means practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or group’s right to the opportunities generally available because of attributed rather than actual characteristics. What is impeding the full development of the potential is not the individual’s capacity but an external barrier that artificially inhibits growth. [Emphasis added.]
This Court has cited the above passage with approval in, inter alia, Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, and Andrews v. Law Society of British Columbia, supra.
38 This Court has, on several occasions, referred to the existence of a subjective component of discrimination. Indeed, this concept is not foreign to Canadian law. In Andrews v. Law Society of British Columbia, supra, at p. 174, McIntyre J. defined discrimination in terms of distinctions based on personal characteristics attributed to an individual. Similarly, in an appeal concerning an Ontario statute and whether it violated s. 15 of the Canadian Charter, McLachlin J. spoke of discrimination in terms of “presumed” characteristics: Miron v. Trudel, supra, at para. 132. See also Battlefords and District Co-operative Ltd. v. Gibbs, supra; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Vriend v. Alberta, supra.
39 The objectives of the Charter, namely the right to equality and protection against discrimination, cannot be achieved unless we recognize that discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations. Since the very nature of discrimination is often subjective, assigning the burden of proving the objective existence of functional limitations to a victim of discrimination would be to give that person a virtually impossible task. Functional limitations often exist only in the mind of other people, in this case that of the employer.
40 It would be strange indeed if the legislature had intended to enable persons with handicaps that result in functional limitations to integrate into the job market, while excluding persons whose handicaps do not lead to functional limitations. Such an approach appears to undermine the very essence of discrimination.
41 I am, therefore, of the view that the Charter’s objective of prohibiting discrimination requires that “handicap” be interpreted so as to recognize its subjective component. A “handicap”, therefore, includes ailments which do not in fact give rise to any limitation or functional disability.
(ii) Related Legislation
42 Philippon J. correctly noted that human rights legislation must conform to constitutional norms, including those set out in the Canadian Charter. While there is no requirement that the provisions of the Charter mirror those of the Canadian Charter, they must nevertheless be interpreted in light of the Canadian Charter: Vriend v. Alberta, supra, and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, supra. Thus, when a statutory provision is open to more than one interpretation, it must be interpreted in a manner consistent with the provisions of the Canadian Charter: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Eaton v. Brant County Board of Education, supra; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.
43 Section 10 of the Charter must also be examined in light of other federal and provincial human rights legislation. The parties noted that the terminology used in human rights legislation varies from one jurisdiction to another. In fact, words such as “handicap” and “disability” are used in English, while words such as “handicap”, “déficience”, “incapacité” and “invalidité” are used in French. See, for example, Canadian Charter, s. 15(1); Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 3(1); Human Rights Act, R.S.P.E.I. 1988, c. H-12, s. 1(1)(l); Fair Practices Act, R.S.N.W.T. 1988, c. F-2, s. 3; Human Rights Code, S.M. 1987-88, c. 45, C.C.S.M., c. H175, s. 9(2)(l); Human Rights Act, R.S.N.S. 1989, c. 214, s. 3(l); Human Rights Code, R.S.O. 1990, c. H.19, s. 2.
44 Judge Brossard held that it was not necessary to compare the ground “handicap” in the Charter with words used in other legislation since federal statutes and those of the majority of Canadian provinces prohibit discrimination on the basis of expressions other than “handicap”. According to Judge Brossard, such a comparison would not facilitate the interpretation of the word “handicap” as it is used in s. 10 of the Charter.
45 As Philippon J. observed, different human rights laws share a common objective and this has often prompted Canadian courts to ascribe a common meaning to similar provisions. In this way, courts have minimized the importance of minor differences in terminology. See Andrews v. Law Society of British Columbia, supra; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.
46 This Court has often stressed that mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes. In University of British Columbia v. Berg, [1993] 2 S.C.R. 353, at p. 373, Lamer C.J., speaking for the majority, stated the following:
If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature. [Emphasis added.]
47 Because the Charter must be interpreted in light of the Canadian Charter and other human rights legislation, we are faced with the question of whether the ground of discrimination found in s. 15(1) of the Canadian Charter and in other human rights statutes includes disabilities which do not give rise to any functional limitation.
48 Whatever the wording of the definitions used in human rights legislation, Canadian courts tend to consider not only the objective basis for certain exclusionary practices (i.e. the actual existence of functional limitations), but also the subjective and erroneous perceptions regarding the existence of such limitations. Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination: Labelle v. Air Canada (1983), 4 C.H.R.R. D/1311 (Can. Trib.); De Jong v. Horlacher Holdings Ltd. (1989), 10 C.H.R.R. D/6283 (B.C.H.R.C.); Matlock v. Canora Holdings Ltd. (1983), 4 C.H.R.R. D/1576 (B.C. Bd. Inq.); St. Thomas v. Canada (Armed Forces) (1991), 14 C.H.R.R. D/301 (Can. Trib.); Davison v. St. Paul Lutheran Home of Melville, Saskatchewan (1992), 15 C.H.R.R. D/81 (Sask. H.R.C.); Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259 (Can. Trib.).
49 With respect to the Canadian Charter, M. D. Lepofsky and J. E. Bickenbach, “Equality Rights and the Physically Handicapped”, in A. F. Bayefsky and M. Eberts, eds., Equality Rights and the Canadian Charter of Rights and Freedoms (1985), 323, at p. 346, submit that a “disability” within the meaning of s. 15 includes an actual or perceived “disability”:
. . . the context of section 15 reveals that a Charter plaintiff can bring a complaint under section 15 whether or not he or she actually has a physical disability, so long as the Charter defendant . . . believed the plaintiff to have a physical disability. If, for example, a federal civil servant was fired from her job because she was allegedly an epileptic, that civil servant could frame an action under section 15 even if she was not in fact an epileptic. . . . Section 15(1) confers rights on “every individual” not “every physically or mentally disabled individual” and points to “discrimination because of disability” instead of “discrimination against disabled persons”. This clearly suggests that perceived, as well as actual, disability is included in section 15. [Emphasis in original.]
50 In Bahlsen v. Canada (Minister of Transport), [1997] 1 F.C. 800, the Federal Court of Appeal held that a diabetic able to control hypoglycemic episodes before they become incapacitating, has a “disability” for the purposes of s. 15(1) of the Canadian Charter.
51 Similarly, in Cinq-Mars v. Transports Provost Inc. (1988), 9 C.H.R.R. D/4704, the Canadian Human Rights Tribunal agreed that bilateral spondylolisis which does not cause any functional limitation constitutes a “disability” under the Canadian Human Rights Act.
52 Thus, by confining the availability of remedies to persons suffering from limitations in the performance of everyday activities, Judge Brossard imposed considerably narrower criteria than those applied under related legislation, including the term “mental or physical disability” in s. 15 of the Canadian Charter. It is therefore my view that Judge Brossard interpreted s. 10 of the Charter too narrowly.
(iii) Legislative History
53 As Philippon J. of the Court of Appeal stated, with respect to legislative interpretation, the importance of legislative history is well established: “. . . prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to it”: Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, at p. 667. It is, therefore, useful to review the legislative history which Philippon J. also examined.
54 The first version of the Charter, which dates from 1975, offered no protection against discrimination based on disability or handicap. In 1978, s. 10 of the Charter was amended to include a ground defined as “the fact that he is a handicapped person or that he uses any means to palliate his handicap” (emphasis added). See s. 112 of An Act to secure the handicapped in the exercise of their rights.
55 At that time, courts regularly interpreted the term “handicapped person” in a manner consistent with the following definition, found in s. 1(g) of An Act to secure the handicapped in the exercise of their rights, which I reproduce again:
“handicapped person”, or “the handicapped” in the plural, means a person limited in the performance of normal activities who is suffering, significantly and permanently, from a physical or mental deficiency, or who regularly uses a prosthesis or an orthopedic device or any other means of palliating his handicap.
56 According to the courts’ interpretation, this ground of discrimination offers protection against discrimination only to persons suffering from actual limitations in the performance of everyday activities. In Commission des droits de la personne du Québec v. Ville de Laval, [1983] C.S. 961, at p. 966, Benoit J. of the Superior Court, dismissing an application by a police officer whose employment was terminated because of an ankle fracture, explained the scope of the protection as follows:
[translation] When an employer refuses to hire someone because it considers the candidate’s skin to be too brown, regardless of whether the candidate actually has brown skin or whether the employer subjectively perceives it as such, the employer has engaged in discriminatory practices on the basis of colour and it must then justify the exclusion as a requirement of the employment. Thus, whether the exclusion is based on race, colour, sex, sexual orientation, civil status, religion, political convictions, language, ethnic or national origin or social condition, discrimination exists whether the employer’s identification of that race, colour, sex, or sexual orientation is objective or purely subjective. [Emphasis added.]
57 As to the ground of “handicap”, Benoit J. pointed out that subjective perceptions were not relevant considerations (at p. 966):
[translation] The wording of s. 10 forces us to conclude that the ground of exclusion based on a person’s handicap cannot be a matter of perception, since the Charter protects a person who is a handicapped person.
58 Thus, the case law from that period indicates that courts rejected subjective perception in the case of handicap, although they did take it into account when considering other grounds of discrimination in s. 10. See also: Commission des droits de la personne du Québec v. Paquet, [1981] C.P. 78; Commission des droits de la personne du Québec v. Héroux (1981), 2 C.H.R.R. D/388 (Que. Prov. Ct.); Commission des droits de la personne du Québec v. Côte St-Luc (Cité de), [1982] C.S. 795; Huppe v. Régie de l’assurance-automobile du Québec, J.E. 84-303 (Prov. Ct.); Commission des droits de la personne du Québec v. Montréal-Nord (Ville de), [1990] R.J.Q. 2765 (C.A.).
59 In 1982, the legislature again amended s. 10 of the Charter, replacing “the fact that he is a handicapped person or that he uses any means to palliate his handicap” with “handicap or the use of any means to palliate a handicap”: An Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, s. 3.
60 According to Professor Côté, supra, at pp. 530-31, a statutory amendment is presumed to have been made in order to change the meaning of the text. In fact, in the present case, there is an indication that the substantive change intended by the legislature was the expansion of the protection against discrimination. In discussions leading up to the passage of the bill to amend the Charter, by the Hon. Marc-André Bédard, then Minister of Justice, made the following statement:
[translation] In addition to being less unwieldy, the proposed wording will cover all handicapped persons and not only, as the courts have interpreted it to date, those handicapped persons contemplated by the Act to secure the handicapped in the exercise of their rights. . . . the court’s interpretation . . . indicated that it only covered the severely handicapped. However, this amendment . . . will allow us to include all handicapped persons.
(Quebec, National Assembly, Journal des débats, No. 230, December 16, 1982, at pp. B-11626 and B-11627.)
61 In Droit constitutionnel (3rd ed. 1997), at p. 1083, Professors H. Brun and G. Tremblay confirm that the purpose of the amendment of s. 10 [translation] “was apparently to move away from the line of cases based on the 1978 Act”.
62 A clear trend has developed in the case law following the 1982 amendment. Courts have consistently recognized that discrimination based on “handicap” includes a subjective component: Commission des droits de la personne du Québec v. Brasserie O’Keefe Ltée, Sup. Ct. Mtl., No. 500-05-005826-878, September 13, 1990; Québec (Commission des droits de la personne) v. Montréal (Communauté urbaine) (1992), 16 C.H.R.R. D/141 (Que. Sup. Ct.); Québec (Commission des droits de la personne) v. Lessard, Beaucage, Lemieux Inc. (1992), 19 C.H.R.R. D/441 (Que. Trib.); Commission des droits de la personne du Québec v. Montréal (Ville de), D.T.E. 94T-600 (T.D.P.); Commission des droits de la personne du Québec v. Ville de Montréal, [1994] R.J.Q. 2097 (T.D.P.).
63 In contrast with this trend, the interpretation proposed by Judge Brossard and by the appellants does not take into account the statutory amendment and the legislature’s clear objective in this regard. The legislative history, the extrinsic evidence and the manner in which the new wording of s. 10 of the Charter has been interpreted by a majority of Quebec courts all support a broad interpretation of the ground of “handicap”, which does not require functional limitations.
(iv) Other provisions of the Charter
64 A statute is presumed to form a coherent whole. Therefore, according to the principles of contextual interpretation, s. 10 and the ground of “handicap” should be interpreted in light of the other provisions of the Charter. In this regard, s. 20 is particularly relevant.
65 As Philippon J. correctly pointed out, the Charter contemplates a two-step process for analysing discrimination. The first step, set out in s. 10, attempts to eliminate discrimination and requires that the applicant produce prima facie evidence of the discrimination. At this stage, the burden on the applicant is limited to showing prejudice and its connection to a prohibited ground of discrimination. There is no onus on the applicant to establish that his or her capacity is limited.
66 It is only at the second step, under s. 20 of the Charter, that the employer has the onus of showing that the measure taken is justified because it is based on aptitudes or qualifications required for the job. Evidence of actual limitations becomes relevant only at this second step.
67 In light of this allocation of the burden or proof, s. 10 of the Charter should not be interpreted as requiring evidence of justification, since this relates instead to s. 20 and the second part of the analysis. Requiring the applicant to prove that he or she has functional limitations under s. 10 would have the effect of reversing the burden of proof. I adopt the analysis of Professor Proulx, supra, at p. 420, where he says:
[translation] Under this structure, the question of whether an anomaly involves limitations which are likely to interfere with the safe and efficient performance of the work cannot be asked in order to determine whether the employer was justified, within the meaning of s. 20, in excluding or being unfair to an employee. At the s. 10 stage, the only relevant question is whether the employer based its decision, in whole or in part, on the fact or presumption that the individual had a physical or mental anomaly which constitutes a handicap. . . . The question of whether or not functional limitations exist and whether they are relevant or important are thus central to the justification process. These considerations are unrelated to the proof of discrimination and the ground on which is it based, which the applicant must establish under s. 10 (combined with s. 16 in the case of employment). [Emphasis added.]
68 Section 20.1 of the Charter also helps clarify the notion of handicap. That section, which was added in 1996, creates an exemption which applies, inter alia, to insurance contracts and social benefits plans. I reproduce that section again:
20.1 In an insurance or pension contract, a social benefits plan, a retirement, pension or insurance plan, or a public pension or public insurance plan, a distinction, exclusion or preference based on age, sex or civil status is deemed non-discriminatory where the use thereof is warranted and the basis therefor is a risk determination factor based on actuarial data.
In such contracts or plans, the use of health as a risk determination factor does not constitute discrimination within the meaning of section 10. [Emphasis added.]
69 Given the presumption that the legislature does not speak in vain, it is my view that if the legislature has expressly provided an exemption based on health, it must be because, outside the context of insurance contracts and plans, health may constitute a prohibited ground of discrimination. This argument is particularly persuasive in that s. 10 establishes an exhaustive list of grounds of discrimination, and handicap is the only listed ground that can be connected to health. We must, therefore, conclude that the legislature has established a connection between the concepts of “health” and “handicap”, which supports an interpretation of the word “handicap” that includes ailments related to health.
70 In short, to require proof of functional limitations under s. 10 would create contradictions between s. 10 and s. 20. It follows that the Act, considered in its entirety, and the presumption of coherence support a broad interpretation of the word “handicap” that does not require anomalies involving functional limitations and that could include ailments related to health.
(v) Conclusion
71 The rules of interpretation do not support the appellants’ argument that the word “handicap” must mean a physical or mental anomaly that necessarily results in functional limitations. The liberal and purposive method of interpretation along with the contextual approach, which includes an analysis of the objectives of human rights legislation, the way in which the word “handicap” and other similar terms have been interpreted elsewhere in Canada, the legislative history, the intention of the legislature and the other provisions of the Charter, support a broad definition of the word “handicap”, which does not necessitate the presence of functional limitations and which recognizes the subjective component of any discrimination based on this ground.
(b) Meaning and Scope of “Handicap”
72 From our analysis of these principles of interpretation, it is clear that ”handicap” as it is used in the Charter can include both an ailment, even one with no resulting functional limitation, as well as the perception of such an ailment. Is it possible, or even useful, to arrive at a more precise definition of “handicap” for the purposes of the Charter? A brief survey of the international scene shows that certain countries, such as Australia and the United States, have adopted specific definitions of “handicap”.
73 Moreover, although it is not expressly mentioned in the leading international instruments such as the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 (1948), at p. 71, the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, or the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, definitions of the word “handicap” and equivalent words do appear in several international instruments which deal specifically with that issue. Nevertheless, there is no consistent definition in international law. Indeed, a number of international instruments have developed a variety of definitions of the term “handicap”, mostly in relation to the specific instrument’s own objectives.
74 Increasingly, the international community relies on the Classification of the World Health Organization (“WHO”) entitled International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease (1980). For example, during the International Year of Disabled Persons, the United Nations adopted a World Programme of Action concerning Disabled Persons, G.A. Res. 37-52 (1982), which was intended to foster rehabilitation and promote equality for persons with a handicap, as this term is defined by the WHO: Proulx, supra, at pp. 324-28.
75 The following definition of the term “handicap” appears in the International Classification of Impairments:
In the context of health experience, a handicap is a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual.
76 I completely agree with Philippon J. that the ground “handicap” must not be confined within a narrow definition that leaves no room for flexibility. Instead of creating an exhaustive definition of this concept, it seems more appropriate to propose a series of guidelines that will facilitate interpretation and, at the same time, allow courts to develop the notion of handicap consistently with various biomedical, social or technological factors. Given both the rapid advances in biomedical technology, and more specifically in genetics, as well as the fact that what is a handicap today may or may not be one tomorrow, an overly narrow definition would not necessarily serve the purpose of the Charter in this regard.
77 Generally, these guidelines should be consistent with the socio-political model proposed by J. E. Bickenbach in Physical Disability and Social Policy (1993). This is not to say that the biomedical basis of “handicap” should be ignored, but rather to point out that, for the purposes of the Charter, we must go beyond this single criterion. Instead, a multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a “handicap”. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.
78 In “Legal Rights for Persons with Disabilities in Canada: Can the Impasse Be Resolved?” (1997-98), 29 Ottawa L. Rev. 153, I. B. McKenna described the scope of the word “handicap” as follows, at p. 164:
It is the combined effect of an individual’s impairment or disability and the environment constructed by society that determines whether such an individual experiences a handicap.
Similarly, Professor Proulx, supra, at p. 416, states:
[translation] . . . what matters with respect to discrimination based on handicap is not so much whether the victim of the exclusion has a “real handicap” or is “actually a handicapped person” within the meaning of other legislation enacted for other purposes or even within the ordinary meaning of these terms. Central to the analysis is not so much the concept of the handicap itself, but the discrimination based on the handicap. [Emphasis in original.]
See also Lepofsky and Bickenbach, supra, at p. 343.
79 Thus, a “handicap” may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors. Indeed, it is the combined effect of all these circumstances that determines whether the individual has a “handicap” for the purposes of the Charter.
80 Courts will, therefore, have to consider not only an individual’s biomedical condition, but also the circumstances in which a distinction is made. In examining the context in which the impugned act occurred, courts must determine, inter alia, whether an actual or perceived ailment causes the individual to experience “the loss or limitation of opportunities to take part in the life of the community on an equal level with others”: McKenna, supra, at pp. 163 and 164. The fact remains that a “handicap” also includes persons who have overcome all functional limitations and who are limited in their everyday activities only by the prejudice or stereotypes that are associated with this ground: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, at para. 2.
81 It is important to note that a “handicap” may exist even without proof of physical limitations or the presence of an ailment. The “handicap” may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial. Further, the Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a handicap in the future.
82 These guidelines are not without limits. Although I believe that health may constitute a “handicap” and thus be a prohibited ground of discrimination under s. 10 of the Charter, the same cannot be said of personal characteristics or “normal” ailments. There is not normally a negative bias against these kinds of characteristics or ailments, and they will generally not constitute a “handicap” for the purposes of s. 10. As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of “handicap”, although they may be discriminatory for other reasons.
83 The aim of the multidimensional analysis described and applied above is not only to eliminate discrimination against persons with handicaps; its goal is also to put an end to the “social phenomenon of handicapping” referred to by Bickenbach, supra, at p. 14, and to eliminate discrimination and inequality, generally.
84 As with distinctions based on the other enumerated grounds, distinctions based on “handicap” are not necessarily discriminatory. Even if the existence of a “handicap” within the meaning of s. 10 of the Charter is proven, all of the employer’s acts do not necessarily constitute discriminatory distinctions. In the present case, the employer acknowledges the causal connection between the complainants’ conditions and the dismissal or refusal to hire. However, in most cases, the applicants will have the burden of proving (1) the existence of a distinction, exclusion or preference, in this case the dismissal and the refusal to hire; (2) that the distinction, exclusion or preference is based on a ground enumerated in s. 10, in this case handicap, and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal exercise of human rights and freedoms. That said, I would reiterate that under s. 20, the onus is on the employer to demonstrate that the impugned measure is justified because it is based on aptitudes or qualifications required for the job.
VI. Disposition
85 Based on the foregoing analysis, and given the facts in the cases at bar, I find that there was discrimination against Ms. Mercier and Mr. Troilo based on handicap for the purposes of s. 10 of the Charter. Accordingly, I would dismiss the appeal and affirm the judgments of the Quebec Court of Appeal. In accordance with the Court of Appeal, I would order that the cases be referred to the Tribunal des droits de la personne for a decision regarding any justification on the part of the defendants.
86 As well, I would dismiss the appeal involving Mr. Hamon, and I would return his case to the Quebec Court of Appeal in order for the Court of Appeal to decide the matter in light of this judgment.
87 The appeal is dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant the City of Montréal: Jalbert, Séguin, Verdon, Caron & Mahoney, Montréal.
Solicitors for the appellant the City of Boisbriand: Lavery, de Billy, Montréal.
Solicitors for the appellant the Communauté urbaine de Montréal: Leduc, Bélanger, Boisvert, Laurendeau, Rivard, Montréal.
Solicitor for the respondent: Béatrice Vizkelety, Montréal.
Solicitor for the mis en cause Réjeanne Mercier: Jean-René Maranda, Montréal.