Perceived Disability Protected

Québec (Comm. des droits de la personne et des droits de la jeunesse) et Mercier c. Montréal (Ville) (2000), 37 C.H.R.R. D/271, 2000 SCC 27

The Supreme Court of Canada has unanimously ruled that the City of Montreal and the City of Boisbriand discriminated against Réjeanne Mercier and Palmerino Troilo on the basis of handicap thus confirming the broad interpretation given to the term "handicap" by the Québec Court of Appeal ((1998), 33 C.H.R.R. D/149).

The City of Montréal refused to hire Mercier as a gardener-horticulturist after a pre-employment medical exam revealed an anomaly of the spinal column. Mercier had never had any symptoms or limitations in performing her normal activities. The City of Boisbriand dismissed Troilo from his position as a police officer because he suffered from Crohn's disease, a chronic inflammation of the intestine, even though the medical reports indicated that he was asymptomatic and therefore able to perform the duties of a police officer. In a third case, similar to that of Mercier, the Communauté urbaine de Montréal refused to hire Jean-Marc Hamon as a police officer because of anomalies to his spinal column.

In Mercier ((1995), 25 C.H.R.R. D/407) and Troilo ((1995), 25 C.H.R.R. D/412), the Québec Tribunal in first instance had dismissed the Commission's applications on the grounds that the employers were entitled to choose candidates who were in better health and that, without functional limitations, the complainants had no remedy under s. 10 of the Charter. In Hamon, the Tribunal held that on the contrary the assessment of a handicap could be objective or purely subjective ((1996), 26 C.H.R.R. D/466).

The Charter does not define the term "handicap", however, the Court held that the rules regarding the construction of statutes support a broad interpretation of the word "handicap" which can include anomalies that do not cause functional limitations and can also include ailments related to health. Whatever the wording of the definitions used in human rights legislation, Canadian courts have tended to consider not only the objective basis for certain exclusionary practices but also the subjective and erroneous perceptions regarding the existence of such limitations. This has also been the case with respect to the Canadian Charter. Thus, the terms "handicap" and "disability" include an actual or perceived disability. The emphasis is on the effects of the distinction or exclusion and not on the precise nature of the handicap, nor its cause or origin which are immaterial. In addition, the Charter also prohibits discrimination based on the possibility that an individual may develop a handicap in the future.

The term "handicap" must not be confined within a narrow definition that leaves no room for flexibility. The Court found that it was more appropriate to propose guidelines that will facilitate interpretation and allow the courts to develop the notion of handicap consistently with various biomedical, social and 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. The Court ruled that a multi-dimensional approach that includes a socio-political dimension was particularly appropriate with an emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition.

The Court also stated that, as with distinctions based on the other enumerated grounds, distinctions based on "handicap" are not necessarily discriminatory. The employer may rely of the defence of justification under s. 20 of the Charter. The onus is then on the employer to demonstrate that the impugned measure is justified because it is based on aptitudes or qualifications required for the job.

Having found that the appellants discriminated against Mercier and Troilo on the basis of handicap, the Court referred the cases to the Tribunal des droits de la personne for a decision regarding the remaining issues. Hamon's case was returned to the Québec Court of Appeal.

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