Canada: Quebec Court Of Appeal Reverses Majority Trend Of The Commission Des Lésions Professionnelles: The Duty To Accommodate Applies To Employment Injuries

Introduction

A decision handed down on June 15, 2015,¹ by the Quebec Court of Appeal reversed the majority trend of the Commission des lésions professionnelles (CLP), Quebec's employment injuries board. The court found that the rehabilitation process in the Act respecting industrial accidents and occupational diseases (AIAOD) does not exempt the employer from the duty to accommodate arising out of the Quebec Charter of Human Rights and Freedoms (Charter).

As such, even though the AIAOD does not require the employer to consider the possibility of making changes to the pre-injury position in order to accommodate the employee or of modifying an existing position to make it suitable, the employer will now be required to analyze and implement these possibilities, short of undue hardship.

The Charter, as a quasi-constitutional law, transcends the AIAOD, adding the duty to accommodate to the obligations already expressly set out in that Act.

The court also ruled that any provision of the AIAOD contrary to the provisions of the Charter is necessarily invalid or, depending on the case, inapplicable. Given this, the employer cannot apply Section 240 AIAOD without distinction and terminate the employment relationship upon expiry of a two (2) year period: for each case, the employer must analyze the possibility of permitting a longer absence to accommodate a worker who has suffered an employment injury, subject to undue hardship.

Facts

In the case at issue, the employer had notified a worker who had suffered an employment injury that no suitable employment in keeping with his functional limitations was available within the company. As a result, the Commission de la santé et de la sécurité du travail (CSST) and the CSST's Direction de la révision administrative (DRA) had issued decisions confirming the absence of such suitable employment at the employer's business.

The worker contested the decisions before the CLP, claiming that the employer was required to modify one of the positions that he himself had identified so that it was in keeping with his functional limitations. According to the worker, the employer, if it did not modify the position to make it suitable, would be in breach of its duty to accommodate under the Charter.

Previous decisions

In keeping with the majority trend,² the CLP dismissed the worker's challenge on the grounds that the rehabilitation process set out in the AIAOD was in and of itself the accommodation provided for in the Charter. Therefore, the only obligations the employer had were those set out in the AIAOD.

Also, as the two (2) year right to return to work provided for in Section 240 AIAOD had expired, the CLP concluded that the employer no longer had any obligation to the worker.

In a decision dated June 5, 2014, the Superior Court, sitting in judicial review, overturned this CLP decision. According to the court, the CLP had erred by refusing to consider whether the employer had acted in a discriminatory manner within the meaning of the Charter and to determine whether it had failed in its duty to accommodate the worker by, in particular, not modifying the position the worker had identified.

Decision of the Court of Appeal

In a unanimous decision, the Court of Appeal confirmed the decision of the Superior Court and determined that the CLP must, in interpreting the provisions of the AIAOD pertaining to the rehabilitation process, take into account the employer's duty to accommodate under the Charter.

While acknowledging that the AIAOD does not impose any obligation to modify the tasks associated with the pre-injury position or of any other available position, the Court of Appeal specified that the quasi-constitutional/supra-legislative nature of the Charter must prevail.

According to the court, to conclude the contrary would have an illogical consequence: a worker with a personal illness would in some way be better protected than a worker with an employment injury. In such a case, the right to return to work is left to the employer's discretion and defined in time.

By so ruling, the court rejected the argument that the regime implemented by the AIAOD constitutes the accommodation provided for in respect of an employment injury and that other obligations cannot be added to it. According to the court, there is nothing preventing an employer, in investigating suitable employment, from fulfilling its duty to accommodate, subject to undue hardship.

Moreover, taking into consideration the teachings of the Supreme Court in McGill,³ the Court of Appeal determined that the employer cannot automatically terminate the employment relationship of an employee with an employment injury automatically after an absence of more than two (2) years, despite the fact that Section 240 AIAOD specifies that the right to return to work is limited to that period of time. As such, since each case is to be considered individually, the employer is required to evaluate the possibility of permitting a longer absence.

Conclusion

The decision, with its inexorable logic, will have a definite impact on employers, for whom the burden of proof in disputes regarding suitable employment or reinstatement in the employee's pre-injury position will be more complicated.

Employers will now be required to analyze whether suitable employment is available while taking into account the duty to accommodate and to provide the CLP with evidence of their efforts in this regard or with the reasons why they determined that adapting the position entailed undue hardship.

There is some question as to which forum is most qualified to rule on whether there is undue hardship. For example, some may feel that, when the collective agreement provides for measures to accommodate employees suffering from an employment injury, the grievance arbitrator has all the necessary jurisdiction to rule on the question in light of the broader labour relations context. The Court of Appeal will be ruling shortly in two matters dealing precisely with this question and it will be very interesting to read those decisions⁴.

Note that, as at the date of publication of this article, no motion for leave to appeal this decision to the Supreme Court had been filed.

We will keep you informed as developments unfold.

Footnotes

1. Commission de la santé et de la sécurité du travail c Caron, 2015 QCCA 1048;

2. Daniel Fournier et Arrondissement Rosemont/Petite-Patrie et Commission de la santé et de la sécurité du travail, 2014 QCCLP 244; Serge Lauzon et Provigo Distribution, 2010 QCCLP 4905; Estelle Lizotte et R.S.S.S. MRC Maskinongé et Commission de la santé et de la sécurité du travail, [2003] CLP 463.

3. McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l'Hôpital général de Montréal, [2007] 1 RCS 161.

4. Syndicat du préhospitalier (FSSS-CSN) c Fortier, 2013 QCCS 2480, JE 2013-1272 (CS); McGill University Non-Academic Certified Association (MUNACA) c Bergeron, 2013 QCCS 1175, JE 2013-692 (CS).

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