Court of Appeal confirms that students are entitled to receive equal treatment with regular employees and casual workers for equivalent work.
Context
In June 2018, we reported on an important decision of the Human Rights Tribunal (hereinafter the “Tribunal”) regarding the separate treatment of students at the Aluminerie de Bécancour (hereinafter the “Aluminerie”).
In this decision, the Tribunal allowed an action for damages brought by the Commission des droits de la personne et des droits de la jeunesse, which considered that the work performed by students hired at the Aluminerie was equivalent to the work performed by regular and casual employees. More specifically, the Tribunal concluded that the students were discriminated against because of their social condition and age, by receiving inferior treatment to these groups of employees without justification, within the meaning of section 19 of the Charter of Human Rights and Freedoms (hereinafter the “Quebec Charter”). You can read our summary of this decision here.
The employer had appealed this decision to the Quebec Court of Appeal, which upheld the Tribunal’s decision on June 16, 2021.
The Decision
A look at the conditions for a recourse for discrimination based on section 10 of the Quebec Charter
In its decision, the Court of Appeal first recalled that, unlike a remedy based on section 15 of the Canadian Charter of Rights and Freedoms, proof of discrimination arising from prejudice, stereotypes or the social context is not required to support a remedy under section 10 of the Quebec Charter. Rather, three elements must be demonstrated, namely:
1. a “distinction, exclusion or preference”;
2. based on any of the grounds listed in the first paragraph of section 10; and
3. that “has the effect of nullifying or impairing” the right to full equality in the recognition and exercise of a human right or freedom.
Notion of “social condition”
The Court of Appeal went on to explain that the notion of social condition set out in section 10 of the Quebec Charter, which constitutes a prohibited ground of discrimination, refers to the position of a person or group in society. This situation may even be temporary. Thus, it is sufficient for the complainant to establish that he or she is part of an identifiable social group and that he or she is being discriminated against because of his or her membership to that social group.
The Court of Appeal confirms that student status is part of this notion and that in the case of the students working at the Aluminerie, they received inferior treatment, solely because of their membership to this student group.
Notion of “equivalent work” and the particular case of students at the Aluminerie
The employer attempted to establish that the distinction was justified because the students were not performing “equivalent work”. This argument, which was rejected at trial before the Tribunal, was not accepted by the Court of Appeal either.
The Court of Appeal explained that the criteria for equivalence are the qualifications and effort required, the responsibilities assumed and the working conditions. The Court of Appeal then found that the uncontradicted evidence established that, when performing the same task, all employees receive the same training, make the same effort, assume the same responsibilities and work under the same conditions. Specifically, it was shown that students are operating in the same dangerous and potentially toxic environment and are assigned to tasks that are just as dangerous as those to which regular employees and casual workers are themselves assigned.
The employer also argued that the nature of the students’ contract, which was for a fixed term, was a justification for the difference in treatment based on the concept of length of service. The Court of Appeal rejected this argument, pointing out that this notion is linked to the concept of the employee’s temporal attachment to the company rather than to the nature of their employment contract.
Conclusions
In sum, the Court of Appeal dismissed the appeal and confirmed the Tribunal’s conclusions. The employer must therefore reimburse the students for the salary and benefits they were deprived of, and is as well ordered to pay $1,000 in moral damages to each of them. It remains to be seen whether the employer will take the case to the Supreme Court of Canada. We will monitor the situation and keep you informed of any developments in this regard.
In conclusion, it should be noted that the Court of Appeal states in its decision that the case in question is quite specific, notably because of the dangerous nature of the work performed by all the employees of the aluminum smelter, including the students, and that consequently, the reasons for the decision are likely to have a limited impact. In fact, the Court of Appeal is of the opinion that student jobs will not disappear, since in most cases, the work performed by students is not really equivalent and that, where applicable, the salary difference will be justified by considerations provided for in section 19 of the Quebec Charter, such as experience, seniority or merit evaluation.
Aluminerie de Bécancour inc. v. Commission des droits de la personne et des droits de la jeunesse, 2021 QCCA 989
