Can an employer rely on an individual's previous discharge for chronic absenteeism related to alcoholism, judged by an arbitrator to have been for cause, to deny him/her subsequent consideration for rehire into another position, even in the face of apparent sobriety and "rehabilitation"?
That was essentially the question put by Quebec's Human Rights Commission to the Court of Appeal in CDPDJ v. Centre Hospitalier Université de Sherbrooke [2012 QCCA 306]. Having lost before Quebec's Human Rights Tribunal, the CDPDJ argued that the hospital's refusal to consider the employee for the position under such circumstances was per se discrimination based on "handicap". It amounted, so the CDPDJ said, to stigmatizing the employee forever for a handicap that no longer existed, notwithstanding the evidence that the employee had been sober for a number of years. It also argued that evidence of the Commission's refusal to prosecute claims made by the employee for analogous discrimination by other employers was improperly admitted by the Trial Court.
Indeed, Quebec's Chief Justice held such evidence to be inadmissible, as the CDPDJ's triage of its files and its decisions to pursue one claim rather than another, were strictly internal and administrative, and certainly not quasi-judicial decisions, even when published and/or matters of public record, being decisions that bound neither the Commission or the Tribunal with respect to any other future cases. Her colleagues on the Appellate panel did not address the issue.
On the substantive issues, Chief Justice Duval-Hesler, found the employer's refusal to afford the employee "personal re-evaluation" to be neither arbitrary nor unreasonable in the circumstances. Since the employee had been held to have been properly discharged on the same grounds that were invoked to refuse the subsequent application for employment, the refusal of an "individualized" evaluation could not be considered any more unjust, arbitrary or unreasonable. While refusing to label the employee's present claim as an abuse of process, she viewed the proceedings as an indirect and collateral attack on the finality of the arbitrator's decision to uphold the discharge, and therefore barred by something approaching res judicata.
Dufresne J.A. simply held that the hospital's mistrust of the candidate's suitability, in view of the aforesaid discharge, was perfectly reasonable in the circumstances. Right or wrong, its refusal to consider the new application, even in the face of sobriety for some time, was not discriminatory. In any case, the hospital was not required by any provision of law to grant an interview so as to properly evaluate the employee's application.
Bouchard J.A. felt differently. Evidence of sobriety for a number of years was, for him, an element that the employer was required to properly evaluate. Having refused to consider same, and without prejudging the employee's right to the position, he found the employer's conduct, in that respect, to be discriminatory.
In view of the dissent of Bouchard J.A. and the Commission's litigious history, a request for leave to the Supreme Court of Canada is not out of the question. Stay tuned!
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