Last week, an article was published in Le Soleil regarding the new criteria used in the hiring of firefighters in the City of Quebec. The City is looking to hire 77 new firefighters, all of which must have received a “Diplôme d’études collégiales” (DEC), or a diploma of college studies, in fire safety. Therefore, all firefighters who have not received this diploma will be rejected from the hiring process. Some candidates have denounced this situation as being discriminatory. Since the program only began in 2009, those who were firefighters prior to 2009, but never followed the course, are excluded from the process and this, regardless of their experience, knowledge or skills.
Is this hiring criteria discriminatory? Section 10 of the Quebec Charter of Human Rights and Freedoms protects all Quebec citizens against discrimination. That being said, Section 20 of the Charter allows discrimination in employment situations where said discriminatory requirement is a characteristic required for the job. In the situation in which Quebec City’s new criteria in the hiring of firefighters is challenged on the basis of discrimination, it would be interesting to see how it is assessed by our courts.
Although covering a different set of facts, the Quebec Court of Appeal reminded us recently in Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec (SIIIACQ) v. Centre hospitalier régional de Trois-Rivières, 2012 QCCA 1867 (CanLii) (application for leave to appeal to the Supreme Court, 14-12-2012) of the applicable principles in determining whether or not a hiring policy is discriminatory. The employee must show discrimination, that is an injury or prejudice and a connection with a prohibited ground of discrimination set out in section 10 of the Quebec Charter of Human Rights and Freedoms. The employer will then have to prove that the discriminatory criteria was justified by the aptitudes or qualifications required by the employment. These aptitudes or qualifications generally receive a restrictive interpretation. More specifically, as discussed in the Supreme Court’s decision Employee Relations Commission v. BCGSEU,  3 R.C.S. 3, for a hiring policy to be deemed non discriminatory, an employer must demonstrate that the requirement was adopted for a purpose rationally connected to the performance of the employment. Furthermore, the employer must establish that the norm is reasonably necessary to realize that legitimate work-related purpose.
It will be interesting to see if, and how, the candidates in this case go forward with an argument of discrimination.
In collaboration with Julie Bélisle, articling student at Norton Rose Canada LLP