There is a great societal debate going on in Quebec with the National Assembly's recent adoption of the Act respecting the laicity of the State,1 which regulates the wear of religious symbols at the government level. The province's highest court contributed to the debate with its recent decision in Singh c. Montréal Gateway Terminals Partnership, 2 which particularly affects federally-regulated businesses.
In this case, freedom to wear religious symbols is pitted against an employer's legal obligations to ensure and maintain occupational health and safety. The Quebec Court of Appeal affirmed a Superior Court judgment3 which held that occupational health and safety prevails over religious freedom, at least in this matter.
The Facts
Three Sikh employees sued a third-party federally-regulated employer for allegedly discriminating against them and infringing on their religious freedom by forcing them to wear a hard hat. The employees considered themselves unable to wear the hard hat due to the turbans their Sikh faith required.
The three employees are truckers who, as part of their work, drive to the Port of Montreal to pick up and deliver merchandise containers. After the federal government passed Bill C-21 in 2004 to amend the Criminal Code,4 private employers under federal jurisdiction renting space in the Port of Montreal were required to adopt a policy to comply with considerably stricter health and safety obligations.
This policy makes it mandatory for everyone, including employees and third parties, to wear a hard hat while circulating outside a building or vehicle. According to the employer, this is required due to the increased risk of head injuries at the Port of Montreal.
The three Sikh employees claim that the policy is discriminatory and infringes on their religious freedom, demanding that their employer accommodate them by allowing them not to wear a hard hat.
Trial Decision
The trial judge explained the legal framework applicable to this rather complex case. Since relations between the Sikh employees and the federal employer are purely private, the Canadian Charter of Rights and Freedoms does not apply. However, though the employer is under federal jurisdiction, the Quebec Charter of human rights and freedoms still applies as the remedy sought does not seriously infringe on the exercise of federal jurisdiction. Naturally, the Canadian Human Rights Act also applies.
After establishing the legal framework, the trial judge concluded that the employees had, on the face of it, demonstrated that they had suffered discrimination. But the analysis does not end there. Was the discrimination justified? Is it a justifiable occupational requirement? For the Superior Court, the answer is yes.
Indeed, it has been demonstrated that the obligation to wear protective headgear was adopted for a purpose that is rationally connected to the performance of the job in that it ensures the health and safety of employees and third parties circulating on the premises of the Port of Montreal. This obligation is also limited to time spent outside buildings and vehicles. The trial judge also had no doubts as to the fact that the policy was implemented in good faith to ensure the health and safety of employees and third parties. As such, he concluded that the policy was reasonably necessary for the employer and that its absence would cause the employer undue hardship.
The Superior Court's analysis on this last point is interesting. It takes into account a temporary accommodation measure that had been implemented by the employer for three years allowing Sikh truckers not to wear hard hats if they remained inside their trucks at all times. This accommodation was, however, rejected by the three employees as it lengthened wait times at the Port of Montreal, and was finally abandoned by the employer due to its lack of economic and organizational viability.
The trial judge also reiterates that the duty to accommodate is not unilateral in such circumstances. Indeed, the three plaintiffs had to actively take part in the search for a solution. Having failed to collaborate during the implementation of the first accommodation measure, which was in place for three years, they cannot now request another less restrictive measure for the employer, who is complying with occupational health and safety requirements.
Court of Appeal Decision
In its judgment issued on September 12, 2019, the Court of Appeal fully endorsed the trial decision. The province's highest court stressed the employee's duty to actively participate in the search for a solution with regard to accommodation. The Court also reiterated the importance for employers to ensure the health and safety of their employees and of third parties circulating on their premises. These obligations prevail over infringement on religious freedom, the adverse effects of which are only temporary and time-limited in this case.
Takeaways
Although decided in part under the Quebec Charter of human rights and freedoms, a similar analysis may apply under human rights legislation in other Canadian provinces. In Ontario, for example, human rights legislation requires employers to accommodate employees on the basis of religion to the point of undue hardship. Health and safety issues are one factor that can be considered in determining if a requested accommodation is an undue hardship.
Ultimately, it is important to remember that the task of finding suitable means of accommodation does not lie solely with the employer. Individuals claiming discrimination must actively participate in the search for a solution, which does not have to be perfect. Finally, it is important for employers to implement sound health and safety measures for employees and third parties, even if this may adversely affect certain individuals.
Footnotes
1. SQ 2019, c 12.
2. 2019 QCCA 1494.
3. 2016 QCCS 4521.
4. RSC 1985, c C-46.
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