On June 15, 2015, in Commission de la santé et de la sécurité au travail v. Alain Caron et al. 2015 QCCA 1048, the Quebec Court of Appeal rendered an important decision that changes the threshold employers must meet when accommodating workplace injuries.
The court confirmed that an employer has a duty to accommodate an employee who has suffered an employment injury resulting in a handicap, even where such an obligation is not required of the employer by virtue of the Act Respecting Industrial Accidents and Occupational Diseases (the "Act").
The Facts
Alain Caron was a teacher and employee of the Centre Miriam, a home for persons with intellectual disabilities. On October 20, 2004, while at work, Caron developed epicondylitis (tennis elbow), which required surgical intervention. Following the injury, Caron's employer assigned him to an alternative and temporary post which he held until 2007, when the temporary position was abolished.
Subsequently, Caron's employer informed the Commission de la santé et de la sécurité du travail (the "Commission") that it could not offer another suitable or available position at its establishment to Caron. His employment was ultimately terminated.
Caron's union then took action on Caron's behalf to contest the employer's decision not to reinstate Caron, arguing that the employer had not respected its obligations under the Quebec's Charter of Human Rights and Freedoms (the "Charter"). The union argued that the injury suffered by Caron amounted to a handicap (an enumerated ground for discrimination under article 10 of the Charter) and that the employer in this case had failed in its duty to accommodate Caron up to the extent of undue hardship by not facilitating his return to work in a suitable position.
The Commission des lésions professionnelles ("CLP") rejected the union's arguments. The union then appealed that decision via a motion for judicial review by the Superior Court of Quebec.
Superior Court of Quebec Decision
In June of 2014, the Superior Court of Quebec (the "Superior Court") reversed the ruling of the CLP1.
The Superior Court ruled that the employer had a duty to reasonably accommodate Mr. Caron pursuant to the Quebec Charter, even if the employer contributed to a comprehensive regime for rehabilitating Mr. Caron, and the CLP had neglected to compel the employer to meet this obligation. Mr. Caron again argued before the Superior Court that his former employer could have satisfied its obligation of accommodation by giving him one of the two positions suitable in the firm, provided that certain adaptations were made. According to Mr. Caron the changes to render said positions suitable were part of the employer's duty to accommodate.
The Superior Court was of the view that the CLP misinterpreted the application of the Charter. The Superior Court held that the CLP should have determined whether the employer's lack of suitable work for Mr. Caron infringed a right protected under the Charte. If so, then the CLP should have exercised the remedial powers provided by articles 49 and 52 of the Charter. The superior Court held that those provisions allow the CLP to review whether Mr. Caron was properly accommodated and anull his termination if the negative.
Moreover the Superior Court held that the delay provided by article 240 of the Act could be challenged under the Charter.
The Commission appealed the case to the Court of Appeal.
Court of Appeal Decision
The Court of Appeal held that the quasi-constitutional right to
accommodation in the workplace, pertaining to an enumerated ground
of discrimination under article 10 of the Charter, such as a
handicap, constitutes a preeminent standard that transcends the
law, employment contracts, and collective agreements. In other
words, the right of an employee to return to work if he/she remains
handicapped after an employment injury requires that the employer
accommodate the employee's special needs up to the point of
undue hardship.
Practically speaking, this means that the employer must adjust the
position or job tasks of the employee, in order to permit the
employee's return to work. This obligation stems from the
Charter, which supersedes the Act.
The argument that the Act constitutes its own autonomous process of accommodation was dismissed by the court.
The duty to accommodate, according to the court, arises from the
application of a supra legislative law, that demands an
individualistic case by case evaluation customized to the
circumstances at hand.
The Court of Appeal upheld the Superior Court of Quebec's
decision and dismissed the Commission's appeal.
Take Away for Employers
This is a markedly significant judgment for employers in Québec as it demonstrates the high level of prudence required to satisfy the duty to accommodate injured employees. With this decision, employers in Québec must now meet a higher threshold. The provisions under the Act regarding the compensation for an employment injury are not sufficient to decide whether the duty to accommodate is satisfied or not. Such duty has to be tested under the Charter, which may, in turn, create a higher set of duties for the employer.
While on the surface, attentive adherence to employment health and safety legislation, work contracts, and collective agreements may appear sufficient, this case demonstrates how even strict compliance with these legally binding requirements can fall short of meeting the quasi-constitutional and supra legislative demands of the Charter. Employers may be exposed to potential liability risks if the requirements of the Charter are not followed in accommodation cases.
While this case operates within a legal framework that is specific to Québec, it is expected that courts in other Canadian jurisdictions will, at the very least, take cognizance of this decision.
Footnote
1. Caron v. Commission des lésions professionnelles, 2014 QCCS 2580.
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