Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal

This appeal concerns the scope of the remedial powers that the Quebec Tribunal des droits de la personne (the “Tribunal”) may exercise under the Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Quebec Charter”), in cases of unlawful discrimination. The issue at bar arises out of the rejection of an application for a position as a municipal police officer on the grounds of a hearing disability. For the reasons I shall give here, the appeal should be allowed in part, with the respondent being ordered to reconsider the complainant’s application, despite his disability, in accordance with the recruitment procedures currently in force.

On February 3, 1992, the Communauté urbaine de Montréal (the “CUM”), now the City of Montréal, which succeeded to the CUM’s rights following the municipal mergers on Montréal Island, hired Mr. Jean-Marc Larocque as a municipal police officer. On February 12, 1993, Mr. Larocque resigned for personal reasons. A few months later, on May 3, 1993, he asked to be reinstated. The CUM replied that he could not be reinstated without once again going through the usual application and selection process. Mr. Larocque therefore submitted another application for the CUM’s consideration.

Pursuant to the regulatory powers given to it by its enabling Act, the Act respecting the Communauté urbaine de Montréal, R.S.Q., c. C-37.2, the CUM had adopted the hearing acuity standards contained in the By-law respecting standards of the Sûreté du Québec and municipal police forces for the hiring of constables and cadets, R.R.Q. 1981, c. P-13, r. 14, as part of its minimum hiring requirements. That by-law would have applied if there had been no relevant municipal regulations. Under s. 6 of the by-law, candidates were exempted from these standards if they had worked as police officers within the last two years. The CUM’s standards, however, did not provide for such an exemption.

As part of the application process, Mr. Larocque underwent a medical examination. The results of that examination showed that he did not meet the minimum standard for hearing acuity. Consequently, pursuant to its authority under the Act respecting the Communauté urbaine de Montréal, the CUM’s executive committee rejected his application. On November 8, 1994, Mr. Larocque was informed that his application had been turned down because his medical examination had shown evidence of hearing loss. It is agreed by all that this hearing loss does not constitute a functional impairment and would not prevent him from carrying out his duties as a municipal police officer. Nevertheless, the standard was applied to the letter.

On December 5, 1994, Mr. Larocque filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (the “Commission”), alleging that the CUM’s refusal to hire him constituted discrimination on the basis of a hearing disability, in violation of ss. 10 and 16 of the Quebec Charter. After investigating the complaint, the Commission proposed a measure of redress in favour of Mr. Larocque. As this proposal was not acted on, the Commission filed an application to institute proceedings with the Tribunal, giving rise to the dispute now before this Court.

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.

13. No one may in a juridical act stipulate a clause involving discrimination.

Such a clause is deemed without effect.

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.

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.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.

52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.

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.

111. The Tribunal is competent to hear and dispose of any application submitted under section 80, 81 or 82, in particular in matters of employment or housing or in connection with goods and services generally available to the public, and any application submitted under section 88, 90 or 91 in respect of an affirmative action program.

Only the commission may initially submit an application to the Tribunal to pursue any of the remedies provided for in any of the said sections, subject to the substitution provided for in section 84 in favour of a complainant and to the pursuit of the remedy provided for in section 91 by a person on whom the Tribunal has previously imposed an affirmative action program.

An Act respecting the Communauté urbaine de Montréal, R.S.Q., c. C-37.2

77. The Community shall alone be responsible for the damages and suits which may arise from the putting into force of any by-law or part of a by-law the quashing of which has been so obtained.

80. Any procès-verbal, resolution or other order of the Community may be set aside, by reason of illegality, in the same manner, within the same time and with the same effect as a by-law of the Council. They shall be subject to the provisions of section 65.

Following fairly complicated proceedings before the Tribunal marked by various events and amendments to the initial application, Judge Brossard handed down a decision allowing the Commission’s claim. In Judge Brossard’s opinion, the CUM had excluded Mr. Larocque from the hiring process because of a distinction based on an assessment of his hearing and on the perception of a handicap. As the evidence showed that Mr. Larocque did not have a true functional impairment, his exclusion from the hiring process was the result of an arbitrary application of a non-individualized standard and therefore constituted an unlawful act of discrimination.

The judge then considered what remedies would be appropriate in this case. In his opinion, s. 52 of the Quebec Charter authorized the Tribunal to declare the regulatory standard adopted by the CUM inoperable in relation to the complainant. In his opinion, the Tribunal could also direct the CUM to reconsider Mr. Larocque’s application in accordance with the hiring process as it was at the time he applied. If his application were accepted, the Tribunal would order the CUM to offer him a position as a police officer [translation] “with all of the benefits to which he would have been entitled had he been hired further to the hiring process from which he had been excluded” (para. 69). Earlier in his decision, however, Judge Brossard had concluded that he could not find the CUM liable for damages resulting from the application of its legislative and regulatory powers. Unhappy with this result, the CUM sought and obtained leave to appeal to the Quebec Court of Appeal.

The appeal was successful for the most part. The court limited the remedy to a mere declaration of the standard’s inoperability in relation to the complainant. According to the court’s reasons for judgment, as a general rule, in cases where a legislative or regulatory provision is found to be inoperable or invalid, the Tribunal cannot award damages as a remedy pursuant to s. 49 of the Quebec Charter. Moreover, a declaration made pursuant to s. 52 cannot have a retroactive effect. In this regard, the decision to place Mr. Larocque back in the hiring process retroactively to 1994 was illegal and an attempt to circumvent an otherwise valid regulation, possibly to the detriment of third parties. That decision is the subject of the appeal now before this Court.

Over the nearly 10 years since this case began, the course of proceedings has recast the nature of the issues still in dispute between the parties. The dispute is now limited to the issue of the nature of the remedy that the Tribunal could grant in the circumstances of this case. As we have seen, this case involves the application of the Quebec Charter to a case of discrimination and refusal to make reasonable accommodation. First of all, the CUM has a duty of reasonable accommodation even though the discriminatory rule originates from an Act or regulation. Second, all proceedings with a view to invalidating the provincial or municipal hiring regulations were either abandoned or rejected when the case was first brought before the Tribunal and are no longer part of the record submitted to this Court. All that remains at issue is the application to have the hearing standards declared inoperative in relation to Mr. Larocque and the form of the remedy to be applied. For this reason, much of the previous debate between the parties and interveners about the scope of the Tribunal’s jurisdiction is now irrelevant.

Since proceedings began in this case, the case law respecting discrimination and the duty of reasonable accommodation has clarified the nature of and the methods for implementing that duty, abandoning the old distinctions drawn between direct and indirect discrimination: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3. The notion of the subjective perception of a handicap was accepted in a case relating to the application of the Quebec Charter: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27. Nevertheless, the protection against discrimination, the duty to accommodate and the concept of handicap are not the creation of these cases. Rather, these developments in the case law served to shape the manner in which these concepts are defined and applied.

In light of the circumstances, it must be accepted that, for the purposes of this appeal, Mr. Larocque was the victim of unlawful discrimination because of a handicap when he was excluded from the police officer hiring process in 1994. The procedural framework of the complaint as it is currently defined by the decisions and actions of the appellant focuses the debate on the individual relationship between Mr. Larocque and the respondent. The Tribunal’s exercise of its remedial power and the identification of appropriate measures of redress remain a function of this context.

Violations of the Quebec Charter give rise to a complex set of remedies. Strictly speaking, it would be more accurate to say that the Quebec Charter provides for a highly diverse range of regimes and procedural avenues for ensuring compliance with and enforcement of rights recognized under the Quebec Charter. When it created the Commission and gave it an important role in the handling of complaints concerning violations of the Quebec Charter, the legislature did not, however, give the Tribunal exclusive jurisdiction over all the rights protected by the Charter. Instead, the legislature limited the Tribunal’s activities to protecting citizens against discrimination and enforcing certain aspects of equality rights, as provided under ss. 71, 86 and 88 of the Quebec Charter, for example. The Tribunal has a broad jurisdiction over such matters, but this jurisdiction does not extend to every aspect of the Quebec Charter, as a reading of ss. 111 and 111.1 indicate. Moreover, even where the Tribunal does have jurisdiction, its jurisdiction is not exclusive. Under s. 80 of the Quebec Charter, the Commission, like the complainants themselves, may apply to courts of law to seek redress in such matters. Individuals whose fundamental rights have been violated retain the right to bypass the Commission’s administrative process and assert their rights before a court of competent jurisdiction, although they do so at their own risk and expense. I shall refrain from commenting on the specific problems surrounding the respective jurisdictions of the Tribunal and other specialized administrative adjudicators, such as grievance arbitrators in matters of labour law, as these issues have already been the subject of extensive debate in Quebec for many years and, most recently, before this Court.

Various remedies are available to claimants and tribunals of competent jurisdiction. Section 49 entitles victims to obtain the cessation of interference with their rights and to damages. Section 52 provides that the Quebec Charter prevails over all Quebec legislation, unless an Act expressly provides otherwise. Special recourse in the form of affirmative action programs is provided for under s. 88. A general principle governing the exercise of these avenues of recourse is outlined in s. 80: the Commission may seek any appropriate measure “compte tenu de l’intérêt public” or, as the English version of the Act puts it more clearly, “where consistent with the public interest”.

Section 52 unquestionably gives the Quebec Charter a preeminent, quasi-constitutional stature in relation to other Quebec legislation. We should nevertheless bear in mind that the appropriate remedy for a violation cannot be chosen without taking into account the constitutional framework and principles governing the organization and practices of Canada’s public institutions so that the relationships between the various components of the legal hierarchy applicable to the situation under Quebec law are articulated appropriately. In this regard, a review of a number of this Court’s observations concerning the relationship between fundamental rights and the overall makeup of Canada’s constitutional framework is in order. These observations are particularly relevant to the discharge of the legislative function, even when that function is delegated, as in the case at bar.

When confronted with the problems of reconciling the Canadian Charter of Rights and Freedoms and provisions of the Constitution Act, 1867 , this Court stressed that the Constitution of Canada forms a single entity and must be read as a whole. The Canadian Charter does not repeal the Constitution Act, 1867 or the constitutional compromises it reflects, as Iacobucci J. explained in connection with the funding of religious schools in Adler v. Ontario, [1996] 3 S.C.R. 609, at paras. 46-47; see also: Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1198, per Wilson J. This Court took its examination of the nature and subject matter of Canada’s constitutional framework further in its opinion on the Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 50 to 53 and 64 to 66, stressing the diversity and complexity of the rules making up the Constitution of Canada. The Constitution includes written rules, of course, but at the same time we cannot ignore the unwritten principles inherent in the democratic and parliamentary form of Canadian government and its origins, principles which govern the exercise of an independent legislative power.

The nature of Canada’s constitutional regime must be taken into consideration when establishing the hierarchy of rules governing the actions of legislatures and public entities, such as municipalities, to which legislative powers have been validly delegated. The ultimate source of traditional immunities with respect to the consequences of the invalidity of legislative action is this constitutional regime, a regime in which legislative power is necessarily exercised within the confines of the law, but independently, free of interference from the civil liability rules of the jus commune. The Quebec Charter, a statute with quasi-constitutional standing in matters within the Quebec legislature’s jurisdiction, is enforced within this legal framework and is still based on the fundamental organizing principles for public powers inspired by this framework.

In the case at bar, as I have already mentioned, the dispute arose out of the adoption and application of a regulatory standard authorized by provincial legislation. It stems from the regulatory activities of the CUM authorized under s. 178.1 of its enabling Act.

In such cases, well-established principles of public law rule out the possibility of awarding damages when legislation is declared unconstitutional, be it on the grounds of a violation of the separation of legislative powers within the Canadian federation or of non-compliance with the Canadian Charter . The case law of this Court has been consistent in this regard. The Court’s position was recently outlined in the comments of Gonthier J. in Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13, at paras. 78-79:

According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional (Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42). . . .

In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers. The law is the source of duty, as much for citizens as for the Administration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation. (Footnotes omitted.)

. . . The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances. Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)). [Emphasis added.]

(See also: Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347.)

In Quebec law, in matters within the jurisdiction of the National Assembly, the Quebec Charter has been elevated to the rank of a source of fundamental law. The interpretation of legislation must draw on its principles. The preliminary provision of the Civil Code of Québec, S.Q. 1991, c. 64, states that the Code, as the jus commune of Quebec, must be interpreted in harmony with the Quebec Charter. Article 1376 C.C.Q. further stipulates that the provisions set out in the Book “Obligations” govern the State’s civil liability (see: Doré v. Verdun (City), [1997] 2 S.C.R. 862; Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85, at paras. 27-31).

The appellant still asserts the right to a remedy in the form of damages or its equivalent for complainants in Mr. Larocque’s position. The appellant’s argument is based on the belief that the enactment of the Quebec Charter fundamentally altered the traditional rules described above, rules that circumscribed the State’s liability for the discharge of its legislative function. The appellant argues that these rules no longer apply with the introduction of s. 49, since this provision authorizes awards for damages to remedy any unlawful act. A breach of the Quebec Charter constitutes such an unlawful act and is equivalent to a fault, as defined in the law of civil liability. On this point, the appellant draws our attention to the comments of Gonthier J. in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, in which he associates violations of the Quebec Charter with the standard of wrongful conduct as defined in the law of civil liability: “It is . . . clear that the violation of a right protected by the Charter is equivalent to a civil fault” (para. 120).

This Court has nevertheless adopted a more nuanced approach with respect to the relationship between the law of civil liability and public law. The Court recognizes that general principles of public law may fully impede the application of the jus commune’s civil liability regime or partially modify the rules for its application (Prud’homme, supra, at para. 31). In the case at bar, the rules governing the immunities attached to legislative and regulatory action are at odds with another principle, one that asserts that where a legislative or regulatory standard is incompatible with the Quebec Charter, the application of that standard constitutes a fault and may engage the liability of a public entity or its officials. The immunity rule excludes such an act from being considered a “fault”, to use the civil law term, or “negligent”, within the common law meaning.

Recourse to the civil liability regime to punish violations of the Quebec Charter does not oust those fundamental rules which serve to safeguard the free and effective discharge of the legislative function, subject to mechanisms currently in place for reviewing constitutionality. In this respect, immunity implies a necessary distinction between a fault or negligent act and one that is unlawful or invalid because it fails to comply with fundamental, constitutional or quasi-constitutional standards. By analogy, in the law of Crown liability, if upon judicial review an administrative decision is found to be unlawful, it does not necessarily follow that there is a fault giving rise to recourse in civil liability (R. A. Macdonald, “Jurisdiction, Illegality and Fault: An Unholy Trinity” (1985), 16 R.G.D. 69; Québec (Procureur général) v. Deniso Lebel Inc., [1996] R.J.Q. 1821, at pp. 1836-37). In this context, the Court of Appeal correctly rejected the appellant’s arguments to the effect that a remedy in the form of damages should be awarded, either directly or through a retroactive award compelling the payment of back salary and benefits. Moreover, as the Court of Appeal concluded, ss. 77 and 80 of the Act respecting the Communauté urbaine de Montréal do not impose a general civil liability on the CUM in such cases. Rather, these provisions stipulate that when a municipal by-law is challenged and quashed, the municipality’s elected officials and employees cannot be held personally liable. The municipality alone assumes responsibility.

In addition to the issue of the availability of an award for damages in some form or other, the Tribunal’s order would, if carried out, raise a number of uncertainties and difficulties warranting the Court of Appeal’s intervention. The order is conditional in nature, and would have the complainant participate once again in a hiring process that has since changed. There is also the question of the monetary obligations it imposes, obligations that could be difficult to quantify. The order might also affect the rights of third parties who participated in that hiring process. Even in a best case scenario, carrying out this order might still have raised further legal disputes. It is difficult to see this order as an appropriate remedy consistent with the public interest within the meaning of s. 80 of the Quebec Charter.

However, the Court of Appeal should not have settled on a purely declaratory remedy either. The Court ruled that no [translation] “order compelling the cessation of the infringement can be made, since there is no fault . . .” (para. 19). With respect, this position ignores the diversity and flexibility of remedies for enforcing fundamental rights. The restoration of these rights must not be reduced to a choice between applying the general civil liability regime or rendering declaratory judgments that recognize the right but give it no practical effect. This approach is perhaps indicative of an undue focus upon a single, albeit important, question in the analysis of the issue of remedies under the Quebec Charter, that is, the issue of the question of the relationship between the law of civil liability in the jus commune and the fundamental freedoms guaranteed under the Quebec Charter.

Despite occasional disagreements over the appropriate means of redress, the case law of this Court, although the law is undoubtedly still in its early stages of development in this area, stresses the need for flexibility and imagination in the crafting of remedies for infringements of fundamental human rights (Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 CSC 62, at paras. 24-25 and 94). We should also not lose sight of the fact that enactments such as the Quebec Charter occasionally require intervention that is in no way related to the law of civil liability. It is sometimes necessary to put an end to actions or change practices or procedures that are incompatible with the Quebec Charter even where there is no fault within the meaning of the law of civil liability. The law of civil liberties may draw upon the law of civil liability where circumstances warrant. The law of delict does not set limits on the enforcement of the law of civil liberties. Thus, in the context of seeking appropriate recourse before an administrative body or a court of competent jurisdiction, the enforcement of this law can lead to the imposition of affirmative or negative obligations designed to correct or bring an end to situations that are incompatible with the Quebec Charter.

In the case at bar, the recognition of the right must be accompanied by a closely linked remedy, one that would prospectively correct the discrimination to which the appellant was subjected, that is, the discrimination resulting from the application of the hiring standards adopted by the CUM. A declaration of inoperability would at the very least mean that, in future, Mr. Larocque’s application would have to be considered according to the by-law respecting the hiring of police officers currently in force at the City of Montréal, but without taking into account his hearing loss. This coupling of conclusions, one following logically from the other, could have been adopted by the Tribunal. Nothing in the Quebec Charter would prohibit this. Given the difficulties inherent in a recourse in damages and the problems posed by the retroactive nature of the decision, this conclusion would be, in the circumstances of this case, an appropriate measure of redress within the meaning of s. 80 of the Quebec Charter.

The hearing standard under the municipal by-law having been ruled inoperable against Mr. Larocque, I would add that it cannot be argued that the provincial by-law would apply to Mr. Larocque in the absence of a municipal by-law, as the municipal by-law has not been invalidated. As we have seen, this provincial by-law includes an exemption from the hearing standard, an exemption that the complainant would have qualified for at the time he applied for the position in question. As he did not withdraw this application, he reserved the right to this exemption, a situation which the Attorney General of Quebec does not contest.

For these reasons, I would allow the appeal in part, adding to the Court of Appeal’s disposition an order compelling the City of Montréal to reconsider Mr. Larocque’s application in accordance with the rules for hiring police officers currently in force, but without taking into account his hearing loss. Given the outcome of this appeal, the appellant shall have its costs in this Court.