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  • A new step in processing requests for accommodations on religious ground

    On July 1st, 2018, the provisions of the Act to foster adherence to state religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies, RLRQ, c.  R-26.2.01 (“Act”) came into force. This Act applies to the “public bodies” that it defines, but remains of interest to any Quebecois employer called upon to process a request for accommodation since it establishes a general framework for analyzing such requests on the basis of principles generally adopted by the courts. For almost three decades, Canadian and Quebecois courts have heard many disputes over the processing of requests for accommodations on religious grounds made by employees to their employers. The decisions rendered, in particular by the Supreme Court of Canada, have identified the main guidelines that must be observed when analyzing these requests.  However, these guidelines are established on fluid concepts like the existence of a sincere religious belief, the discriminatory effect of a measure, or the qualification of the constraint imposed by the accommodation. Debates surrounding the adoption of the Act, in October 2017, mainly focused on the issues of the religious neutrality of the State, such as the issue of openly providing and receiving services from any body associated with the State in any way. There has been much less focus on the utmost important provisions that require a method of analyzing accommodation requests made by staff members of these bodies. The Act implicitly codifies that guidelines adopted by the courts, not only in religious matters, but also regarding other grounds that may constitute an infringement of the right to equality recognized, in particular, by the Charter of Human Rights and Freedoms, RLRQ, c. C-12 (“Charter”). In this respect, the Act does not modify the state of the law, but specifies the terms of its application, although only in the area of the freedom of religion and its exercise.  On the other hand, the criteria adopted by it are sufficiently generic enough to be extended, by simple analogy, to different grounds, such as those for people with disabilities. Article 11 of the Act lists four criteria that should be considered when processing a request for accommodation: 1. that the request is serious; 2. that the accommodation is consistent with the right to equality of women and men and the right of every person to be treated without discrimination; 3. that the requested accommodation respects the principle of State religious neutrality; and    4. that the accommodation is reasonable in that it does not impose undue hardship with regard to, among other considerations, the   rights of others, public health and safety  , the proper operation of the body and the costs involved. By an unusual legislative process, Article 12 of the Act provides that the Minister of Justice must establish guidelines “in order to support bodies in their application of Article 11.” These guidelines were published on May 9, 20181 and provide a guide for the application of Article 11 of the Act as well as Article 13, which specifically addresses requests that involve an absence from work. They propose several definitions of notions and concepts involved. In particular, they illustrate several situations in which the requests may be made, as well as the circumstances that make it possible to assess whether the resulting constraints are excessive and justify not proceeding. They clearly state that any request for accommodation on religious grounds requires a contextual and personal evaluation, confirming that in this respect, it is essential to proceed on a case-by-case basis, despite the criticisms that this approach raises in some areas. It should be noted that the Act and its guidelines are explicit on the obligation of cooperation on the part of the person making the request for accommodation: failing that, this request may be dismissed. The Act does not contain, in a strict sense, penalty measures for non-compliance with its provisions.  However, since it is closely linked to the application of the Charter, the mechanisms provided by the Charter are accessible to those who feel dissatisfied by the decisions made by a reporting body, as will remain the arbitration process, as the case may be. The Act applies to public bodies, which it defines in a very broad manner in order to include, for example 2, public transit companies, early childhood centers, government regulated private institutions and intermediary resources in the health sector. One would think, however, that it will provide an informal reference on how to process accommodation requests, regardless of the work place. It would therefore be useful for managers of other entities to draw on the guidelines adopted when they must process accommodation requests and it would also be appropriate to consider the approaches proposed in the guidelines. The goal that fundamental rights be exercised equally is not just a State matter ; it is, above all, a social matter.   https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/Fr__francais_/centredoc/publications/ministere/dossiers/neutralite/PL62-lignes-FR.pdf (accessed June 21, 2018). A directory of the organizations concerned is available at: https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/Fr__francais_/centredoc/publications/ministere/dossiers/neutralite/Liste_organismes_PL62.pdf (accessed June 21, 2018).

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  • Time limit for handling complaints from health care consumers: the Supreme Court of Canada refuses to intervene

    On February 26, 2015, the Supreme Court of Canada dismissed Dr. Gilbert Liu's application for leave to appeal a Court of Appeal decision concerning the time limit for handling complaints from users of health institutions. In a unanimous decision rendered September 4, 2014, the Court of Appeal confirmed that the 45-day time limit prescribed by the Act respecting health services and social services1, ("HSSSA") for handling complaints from users imposed on the medical examiner and the local service quality and complaints commissioner is not mandatory. The Court was of the view that the purpose of the time limit was to underscore the legislator's desire for the diligent handling of complaints2. In accordance with Supreme Court practice, the judgment does not give any reasons. However, it puts an end to the controversy over the actual scope of the Court of Appeal judgment confirming the April 2013 Superior Court decision3. The state of the law is now clear and the Court of Appeal judgment is authoritative. Currently pending cases, judicial and institutional, must now be handled in line with the conclusions of the Court of Appeal. It should be noted that the physician's position was based on an interpretation of sections 47 and 49 of the HSSSA to the effect that if, at the end of the prescribed 45 days, a medical examiner had still not dealt with a complaint and had not issued any findings with respect thereto, he or she lost jurisdiction. The complaint then expired unless the complainant exercised his or her right to submit it to the review committee. Like the Superior Court, the Court of Appeal acknowledged that the primary goal of a system for handing complaints from users is [translation:] "the simple and effective exercise of users' rights". To interpret the 45-day time limit as suggested by the physician, would penalize the complainant by depriving that person of the right to have the complaint dealt with. It would defeat the purpose sought by legislator. The finding of the Court of Appeal can be extended to all user complaints, not only those concerning physicians, dentists or pharmacists. According to the HSSSA, complaints must be dealt with within a prescribed deadline. The Court reiterated that in reality, in many instances a variety of factors could explain why a medical examiner or local service quality and complaints commissioner would be unable to formulate the conclusions sought within the 45-day time limit. These factors could be attributed to the complainant, to the person who is the subject of the complaint or to all manner of events. However, it must be emphasized that the 45-day time limit stated in the Act for handling a complaint expresses the legislator's intention that user complaints be dealt with expeditiously. The examining authorities would be well advised to document the reasons for their inability to act within that period to avoid unnecessarily contentious situations. _________________________________________ 1 CQLR, c. S-4.2. 2 Liu v. Comité de discipline du Centre de santé et de services sociaux Haut-Richelieu-Rouville, 2014 QCCA 1613. 3 Liu v Comité de discipline du Centre de santé et de services sociaux Haut-Richelieu-Rouville, 2013 QCCS 1856.

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  • Processing Users Complaints in Health Institutions : the Court of Appeal Confirms that the 45-Day Time Limit Is Not Mandatory

    In an unanimous decision dated September 4, 20141 , the Court of Appeal confirmed that the 45-day time limit under the Act Respecting Health Services and Social Services2 (ARHSSS) to allow the medical examiner and the local service quality and complaints commissioner to process a user complaint is not mandatory but rather serves to indicate that the Legislator intends the complaint to be diligently processed. This judgment is further to a judgment of the Superior Court issued in April 2013, in which the Court had come to the same conclusion3. The facts are simple : a physician who was the subject of a complaint maintained that at the expiry of a 45-day period, the medical examiner who had not yet processed the complaint and had not issued conclusions loses jurisdiction. For all intents and purposes, this complaint then becomes null and void, unless the complainant exercises his right to submit it to a review committee. In the present case, the medical examiner had decided that the complaint had to be investigated for disciplinary purposes and had sent the file to the appropriate authorities 22 days after the time limit had expired. It must be noted that the ARHSSS contains no other provision which provides for a time limit within which the various competent disciplinary bodies would be required to decide on imposing sanctions to a physician. Moreover, the ARHSSS does not indicate a time period within which a complaint may be made. If the position of the physician had been successful, the result would have been that during a process to which no particular time limit applies, exceeding the initial 45-day time limit would constitute such a determining event that the complaint would no longer be allowed to be processed. As the Superior Court did, the Court of Appeal acknowledged that the main purpose of the regime for processing user complaints is [TRANSLATION] “the simple and efficient exercise of their rights by the users”. Interpreting the 45-day time limit for processing a complaint in the manner suggested by the physician would deprive the complainant – who did nothing wrong – of his right to have his complaint processed. This would defeat the objective sought by the Legislator, who used no wording which would allow one to conclude that he intended to make this time limit mandatory. In fact, the Court of Appeal was of the view that the time limit has rather been set to indicate that a person subject to it must act diligently, but also was mainly intended to trigger the right of the complainant to accelerate the processing of his complaint. Indeed, at the expiry of the time limit, the complainant can seize the review committee, which – to use the wording of the Court – acts as a “supervisory committee”. The scope of the judgment of the Court of Appeal well exceeds that of the case under review since all the user complaints, and not only those in respect of physicians, dentists or pharmacists, should be processed within the provided time limits. The Court’s decision does reflect the reality observed in many environments whereby many factors can explain why the medical examiner or the complaints commissioner could not provide the conclusions sought within the 45-day time limit. These factors may be attributable to the complainant, the person against whom the complaint is made, or events of any nature. The Court noted that in this respect, the medical examiner has no actual enforcement authority and that despite the fact that he may want to proceed diligently, the behaviour of third parties may prevent him from doing so. This being said, one must keep in mind that the 45-day time limit, despite being only indicative in nature, remains the expression of the Legislator’s intent that users’ complaints be processed quickly. The judgment of the Court of Appeal recognizes that the medical examiner retains jurisdiction to deal with a complaint despite the expiry of this time limit, but it is well specified that he is required to act as diligently as possible. _________________________________________ 1 Liu v. Comité de discipline du Centre de santé et de services sociaux Haut-Richelieu-Rouville, 500-09-023569-130, September 4, 2014. 2 CQLR, c. S-4.2. 3 Liu v. Comité de discipline du Centre de santé et de services sociaux Haut-Richelieu-Rouville, 2013 QCCS 1856.

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