A precedent-setting ruling by the Quebec Court of Appeal that amended the provincial law governing an employers’ duty to accommodate employees with workplace injuries will compel employers, unions, workers, and the Quebec worker’s compensation board to review the way they manage employment injury cases, according to employment and labour lawyers.
In light of Supreme Court of Canada rulings regarding reasonable accommodation of people with disabilities, the Quebec Court of Appeal held that the rehabilitative process contemplated by the Quebec Act respecting industrial accidents and occupational injuries (ARIAOD) does not relieve employers of their duty to accommodate under the Quebec Charter of Human Rights and Freedoms.
“This ruling helps to ensure the progress of labour rights,” remarked Sophie Cloutier, a Quebec City labour lawyer with Poudrier Bradet Avocats LLP. “The ruling is very important because it marks a shift by the Quebec Court of Appeal on its own case law and ensures that the Charter and the duty to accommodate is applied in cases involving workplace injuries.”
In October 2004, Alain Caron developed tennis elbow while working as an educator at a Montreal institution for people with intellectual disabilities. His workplace injury lead to functional limitations that prevented him from continuing to work as an educator. His employer terminated his employment because it deemed that there was no other suitable position that was compatible with his functional limitations. After review, the Commission de la santé et de la securité du travail (Quebec workers compensation board) confirmed the employer’s decision. The Commission des lésions professionnelles, an administrative tribunal that hears appeals by employers or workers challenging decisions by CSST, dismissed Caron’s application to impose a duty to accommodate on the employer.
Under ARIAOD, victims of an employment injury have the right to return to work for their employer and a right to rehabilitation with a view to reinstatement in their employment, equivalent employment, or suitable employment. The provincial statute however does not impose on the employer to find suitable employment to an employee who has sustained a work-related injury nor a duty to accommodate. Well-established case law has also maintained that the ARIAOD does not grant the CSST or the CLP the power to impose, recommend, or suggest any kind of accommodation.
Up until the Caron case, “the courts have refused to impose a duty of accommodation within the ARIAOD framework, holding that the CSST and the CLP did not have the jurisdiction to order such a measure or that the ARIAOD legislative scheme constituted an autonomous set of standards that incorporates its own legal accommodation process,” explained Anne-Marie Laflamme, a law professor at the Université Laval who has written about the subject.
Caron fought back and took the matter before Quebec Superior Court for judicial review and won. The court held that the CLP should have taken into account the Charter, annulled CLP’s decision, and sent the case back for reconsideration. The CSST appealed the lower court decision before the Quebec Court of Appeal, and lost.
The appeal court held that an employee living with the after-effects of a work-related accident could be considered handicapped, and should therefore be protected by the Charter. Otherwise that would lead to the odd situation where workers disabled by an employment injury would be “disadvantaged when compared with workers whose disabilities result from a personal condition,” noted Justice Dominique Bélanger in a unanimous decision in Commission de la santé et de la sécurité au travail v. Caron 2015 QCCA 1048. Though the ARIAOD does not impose an obligation on the employer to offer suitable employment to an employee who has suffered a work-related injury, the appeal court held that because of the supra-legislative nature of the Charter employers will now have to find an acceptable solution to accommodate workers whose work-related injuries have caused functional limitations. The appeal court also held that the CSST now has the obligation to determine whether an employer diligently performed that exercise.
“It will more or less change things in unionized workplaces because in practice many employers, particularly governmental and para-governmental organizations, already have collective agreements that puts that exercise into practice,” noted Raymond Gouge, a Quebec City lawyer whose practice focuses on workers’ compensation and occupational health and safety in the health sector. “But in some sectors, like pulp and paper or transportation, the duty to accommodate will not be easy because of the physical nature of the jobs and so employers will not necessarily be able to accommodate them.”
Employees who work in non-unionized workplaces will notably benefit from the ruling, said Laflamme. “The ruling by the appeal court will allow all workers who suffered a work-related accident the right to benefit from the right of reasonable accommodation, regardless of whether or not they are unionized,” said Laflamme. “Up until now, only unionized employees benefitted from these rights under their collective agreement.”
Besides employers, workers and unions too will have to change the manner they handle work-related injury cases. While employers will now have to demonstrate that they actively sought a reasonable accommodation before asserting that they have no suitable position for an injured worker with functional limitations, the appeal court highlighted that unions and workers too have to cooperate in the process. In fact, workers have a corollary obligation to accept the proposed accommodation, so long as it is reasonable, said Justice Bélanger.
The CSST, which is considering appealing the ruling, will likely have their hands full to ensure that public and private sector employers are fulfilling their duty to accommodate employees who have functional limitations due to a work accident, noted Gouge. That will likely drive up costs. After all, the CSST is for all intents and purposes an insurance company, pointed out Jean-François Martin, a labour and health and safety lawyer with Dufresne Hébert Martin in Montreal. “Besides seeking to protect the provisions of the law that they defend, they saw the issue as an economic one,” noted Martin. “Like other provincial workers’ compensation boards, the financial responsibility (of handling work-related injury cases) ceases after a while for the employer, and it is the CSST that takes over the case. So it is a big issue for them.”
The financial burden will likely be heightened because the appeal court held that the time limit provided for in the ARIAOD for a worker to exercise his right to return to work – depending on the circumstances it could be a year or two – is merely one of the factors that employers and the CSST has to take into consideration. It no longer is a determinative factor.
The issue is far from settled. The Quebec Court of Appeal will decide shortly whether arbitrators have the jurisdiction to determine whether employers are fulfilling their duty to accommodate in such matters.