In a move applauded by business and denounced by labour, the Quebec government has created a new labour, employment and workers’ compensation tribunal and consolidated several employment and labour boards into a single administrative body in a bid to streamline government services and modernize and improve the efficiency of the province’s administrative justice system.
The changes, in effect as of this January, are expected to yield savings of approximately $15 million over the next three years. But much uncertainty surrounds the impact of the reorganization. Though Bill 42 received Royal Assent last June, the regulations delineating the powers of the new bodies have yet to drawn up.
“It’s an interesting development but it’s difficult at this stage to qualify it as positive or not,” said Ēlodie Brunet, a Montreal employment and labour lawyer with Lavery, de Billy. “Only time will tell whether the new and large administrative structures will be more efficient.”
Bill 42 establishes a new body called the Administrative Labour Tribunal (Tribunal) that will take over jurisdiction of both the Quebec’s labour board and the provincial workers’ compensation tribunal. The new Tribunal will comprise of four new divisions, including the labour relations division which will adjudicate matters resulting from the application of the Labour Code and the Act respecting labour standards, the occupational health and safety division, the essential services division, and the construction industry and occupational qualification division.
Questions however linger around the rules of evidence and procedure that will be applicable before the new Tribunal. At present Quebec’s labour board and the provincial workers’ compensation tribunal have separate and distinct rules of evidence and procedure, noted Brunet. While the Act provides for a single procedure for proceedings before the new Tribunal, it has yet to be fleshed out by the adoption of regulations. Bill 42 for instance provides that a Tribunal adjudicator may in the context of a hearing visit the premises or order an expert report. Under current regulations, those are powers that the provincial workers’ compensation tribunal possess but not the Quebec labour board. Making matters even murkier, Bill 42 does not stipulate whether this power will be limited to the occupational health and safety division or whether it will be applicable to all divisions, added Brunet. “The generalization of this power is likely to have significant impacts on the way in which labour-related disputes are adjudicated before the new administrative tribunal,” remarked Brunet.
There are also concerns that the reorganization could eventually lead to a significant loss of expertise, particularly since each tribunal and commission has over the years accrued and developed highly specialized know-how. Much of it will hinge on the direction that the new president of the new Tribunal takes. Under Bill 42, the president of the new Tribunal has been granted broad powers. The president can assign adjudicators to one or more of its divisions and may reassign or temporarily assign a member to another division. But while Bill 42 states that the president should take account an adjudicator’s expertise and experience before assigning work, he is not required to do so. It all hinges therefore on whether the president of the new Tribunal will favour a generalist approach where adjudicators are assigned to several divisions or whether he will focus on ensuring that adjudicators will be assigned mandates depending on their expertise, said Geneviève Beaudin, and employment and labour lawyer with the Montreal law firm Langlois avocats.
“Will adjudicators who used to oversee cases with the provincial workers’ compensation tribunal continue to work in cases that arise from the application of the Act respecting occupational health and safety or will they be also working on cases involving the application of the Labour Code?” wondered Beaudin. “It’s not the same thing. The rules are different. It’s not even the same subject. The expertise of adjudicators may be an issue. Time will tell.”
Organized labour too is concerned about the possible loss of expertise the Tribunal may suffer. Jacques Létourneau, the president of the Confédération des syndicats nationaux, one of Quebec’s largest unions, has said it is illusory to believe that the new Tribunal will be able to be as efficient and as knowledgeable as the organizations it will replace.
From a practical perspective one of the most significant changes deals with the manner which a party must now submit a dispute to the new Tribunal, said Beaudin. As of now, just as is the case under the Code of Civil Procedure, a party will be required to file a so-called “originating pleading” and must specify the conclusions sought and set out the grounds in support of them,” according to Bill 42. This marks a significant departure from the current procedure, which essentially consists of filing standard forms that provide little information regarding the alleged facts that give rise to the dispute. Moreover, under the current system, the conclusions sought do not have to be specified.
“That is a major and important change, one that employers have been clamouring for years,” said Beaudin. “This could have a material impact on complaints for example of psychological harassment. But it all depends on how the adjudicators will interpret and apply the new rules. If the adjudicators interpret it restrictively, then it will be like the status quo.”
But the introduction of the originating pleading has also prompted some to assert that it will inevitably hinder access to justice, said Brunet. Since it will place a heavier burden on complainants, it has been perceived in some quarters as being a “brake on access to justice,” noted Brunet.
Bill 42 also will consolidate Quebec’s pay equity commission, the province’s employments standards commission, and the workplace health and safety commission into a single administrative body that will be called the Commission des normes, de l’équité, de la santé et de la sécurité du travail (Commission).
That merger should lead the new Commission to take “appropriate measures to avoid any conflict” with respect to potentially related issues in the application of different regimes, warned the Conseil du patronat du Québec (CPQ), a business lobby group. The CPQ notes that psychological harassment can be the subject of a labour standards claim and an employment injury claim – and both have different criteria that must be satisfied in both cases.
This story was originally published in The Lawyers Weekly.