Decision-makers frequently make legal errors when applying the principles governing discrimination.
In this regard, the recent decision of the Québec Superior Court in Brière1 highlights one of the most common pitfalls: the tendency to incorporate justification into the prima facie discrimination analysis. Beyond this methodological reminder, the decision offers several practical lessons for those called upon to assess allegations of discrimination, particularly in the context of workplace investigations.
The case concerned two employees who were participating in a gradual return-to-work program following a medical leave. Their employer, a Québec health and social services centre (CISSS), had denied them a wage premium (known as the “step premium”), which was introduced during the COVID-19 pandemic to encourage attendance at work and help address staffing shortages in the healthcare system.
Eligibility for the premium was governed by ministerial orders and depended on the number of hours actually worked. Although certain absences, such as vacation and statutory holidays, were deemed to constitute hours worked for eligibility purposes, no comparable exception existed for employees participating in a gradual return to work. Because the employees were unable to work full-time because of their disabilities, they were effectively excluded from receiving the premium.
The employees filed grievances alleging that this exclusion constituted discrimination based on disability. The arbitrators dismissed the grievances, concluding essentially that the eligibility criteria and exceptions established by the ministerial orders were rational and justified in the context of the pandemic. The decisions were subsequently brought before the Québec Superior Court on judicial review.
The Superior Court held that the arbitration decisions were unreasonable because of a significant methodological error: the arbitrators incorporated considerations relating to justification into their analysis of prima facie discrimination.2
The legal framework applicable to discrimination claims involves two distinct stages:
At the first stage, the question is whether the complainant experienced an adverse impact linked to a protected ground. All of the evidence is relevant at this stage, including evidence capable of demonstrating that the protected ground played no role in the alleged adverse impact. As the Court emphasized, the arbitrariness of an adverse impact refers to whether it fails to respond to the complainant’s actual needs and circumstances, not to whether the measure is rational or otherwise justified.4
This is precisely the distinction the arbitrators overlooked in Brière. In concluding that the complainants had failed to establish prima facie discrimination, they relied on the fact that the exceptions created by the ministerial orders were, in their view, rational in the context of the pandemic.5 In other words, they relied on considerations going to justification to conclude that no discrimination had been established in the first place.
While the rationality, purpose, or reasonableness of a measure may ultimately justify a distinction, those considerations should not be used to determine whether prima facie discrimination has been established.
This does not mean that the respondent’s explanations are irrelevant at the first stage. They may demonstrate, for example, that the protected ground played no role in the alleged adverse impact. The key is not to confuse those explanations with the legal justification for the distinction.
Beyond the analytical framework, Brière also reinforces another fundamental principle: discrimination is assessed based on the effects of a measure, not merely its wording or the intention behind it.
In this case, the requirement that employees work a minimum number of hours appeared neutral on its face because it made no explicit distinction based on disability. In practice, however, the complainants were unable to meet that threshold precisely because of their disabilities and the terms of their gradual return to work. As a result, the rule denied them a benefit that remained available to other employees.
The Court also emphasized that the protections guaranteed by human rights legislation (in this case, the Québec Charter6) take precedence over ministerial orders.7 Accordingly, the employer’s literal application of those orders did not answer the real question: whether their application produced discriminatory effects.
Similarly, the fact that an individual simply applied an existing policy may be relevant in assessing that person’s individual liability, but it does not establish that no discrimination occurred. The analysis must still determine whether the policy itself produces discriminatory effects for which the organization may be held responsible.
The decision also illustrates a somewhat paradoxical situation: the complainants were denied the premium because they were unable to work full-time as part of their gradual return to work, which itself constituted an accommodation for their disabilities. The disadvantage therefore arose not from the accommodation itself, but from its interaction with a generally applicable rule that failed to account for the circumstances of employees participating in a gradual return-to-work program.
The fact that an employee has already been accommodated does not preclude a claim of discrimination, nor does it justify the presumption that every consequence flowing from that accommodation complies with the right to equality.8 It is therefore necessary to examine not only the accommodation itself, but also any other workplace rules that may disadvantage the employee because of the way the accommodation operates.
Brière serves as an important reminder that those assessing allegations of discrimination should:
Analytical rigour is not merely a theoretical concern. It lies at the heart of the credibility of workplace investigations and the quality of the conclusions they produce.
1. Alliance du personnel professionnel et technique de la santé et des services sociaux c. Brière, 2026 QCCS 71 [Brière] (in French only).
2. Idem, at paras 118-119.
3. Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, at para 3; Moore v. British Columbia (Education), 2012 SCC 61, at para 33.
4. Brière, supra note 1, at para 125, citing with approval Daniel PROULX and Frédérick J. DOUCET, “Droit à l’égalité,” in JurisClasseur Québec, col. “Droit public – Droit constitutionnel,” fasc. 9, Montréal, LexisNexis Canada, at paras 15 and 100.
5. Brière, idem, at paras 120-123.
6. Charter of Human Rights and Freedoms, CQLR c C-12.
7. Brière, supra note 1, at para 140.
8. See, by analogy, Fraser v. Canada (Attorney General), 2020 SCC 28, where the Supreme Court of Canada held that the adverse impact flowing from a measure designed to accommodate the personal and family needs of RCMP members could nevertheless have a discriminatory impact on women.
