A recent decision by the Supreme Court of Canada sheds new light on how to consider employers’ duty to accommodate when dealing with an injured worker. In Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3, the Court unanimously decided that “the duty to reasonably accommodate disabled employees is a fundamental tenet of Canadian and, more particularly, Quebec labour law.[1]”
Unlike a few other provinces, in Quebec, employers did not have the duty to reasonably accommodate a disabled worker after a work related injury. The employer’s duty was to respect the rehabilitation process pursuant to the Act Respecting Industrial Accidents and Occupational Diseases (the Act). Before Caron, Quebec’s courts had decided multiple times that the rehabilitation process from the Act was considered a reasonable accommodation itself, equal to the one found in the Quebec Charter. Therefore, a disabled worker with a personal injury and a disabled worker with a work injury were treated differently: the first one benefited from the right to be reasonably accommodated but the latter did not.
The Caron case took a long and circuitous route that started in 2004. After being injured at work, Mr. Caron was left with a permanent elbow injury, which was recognized as a work related injury. The employer reassigned him for a number of years to a clerical position, respecting his disabilities. However, when that assignment ended, due to shortage of available work, Mr. Caron was deemed to be unable to return to his previous duties. Furthermore, he was informed by the Commission de la santé et de la sécurité du travail (CSST) and his employer that, because of the elbow injury, there was also no suitable alternative employment for him with his current employer. Under the rehabilitation process pursuant to the Act, the employer had discharged its obligation to Mr. Caron, who had no other choice but to look for employment elsewhere.
Two important questions emerged over time: first, considering the “well thought‑out social compromise”[2] upon which the Act is built, should the Court find that the strict compliance with the Act satisfy fully, or only partly, the legal duty to accommodate? Second, if not, should the duty to accommodate apply only to the statutory two year period during which an employee has a right to return to work?
Apart from the original parties to the case, a variety of groups were granted status to intervene. As a result, both practical and more fundamental questions were presented before the Court. On the one side, the employers and the Commission des normes, de l’équité, de la santé et de la sécurité du travail (formerly known as CSST) pleaded that the Act was in and of itself a full accommodation process and that inserting obligations derived from the Quebec Charter would in fact go against the social compromise made when the Act was put into place. They also pleaded that the CNESST had neither the expertise nor the resources to ensure that employers have completed the accommodation process fairly and efficiently. On the other side, unions and workers’ groups pleaded that the Quebec Charter’s duty to accommodate was fully compatible with the Act since the objectives were basically the same and that this obligation had to be present at every step of the process. The unions also maintained that the 2 year time frame for the right to return to work could not be a total bar to the duty to accommodate.
The SCC started its analysis by reviewing its main decisions on the duty to accommodate, restating the importance of an individual assessment of the situation and the fact that undue hardship will be met when nothing else reasonable or practical can be found. The Court then reaffirmed that the Quebec Charter is of a quasi-constitutional nature and stated clearly that all laws should be interpreted in conformity with it, including the Act.
The SCC then analysed the rehabilitation process provided by the Act and found that “[when examining] the Act’s goals and underlying policies, we see a statutory scheme that already clearly anticipates that reasonable steps will be taken to assist the disabled worker in being able to work if possible.[3]” The Court also found that even if the Act provided for a form of accommodation, this did not preclude the application of other forms of accommodation.
The Court ended its decision in this way: “Whether the time limit should be applied to Mr. Caron is a determination for the Administrative Labour Tribunal to make in the context of this revised approach and the relevant circumstances of this case.” This means that the time limit is not necessarily fatal in all cases and that an individualised assessment like the one put forward in Centre universitaire de santé McGill (Hôpital général de Montréal) c. Syndicat des employés de l'Hôpital général de Montréal, [2007] 1 RCS 161 could be applicable.
Though the SCC was unanimous in finding that the employer had the duty to find a reasonable accommodation during the rehabilitation process, as articulated by Justice Abella, Justices Côté and Rowe did not agree with the majority’s approach. According to them, applying a “blanket presumption of conformity of the Act with the Quebec Charter is contrary to the Court’s jurisprudence and to section 51 of the Quebec Charter”, which could lead to a misunderstanding of the legislative intent of the Act and to “extend or amend the scope of a provision of law.” Respectfully, we do not agree with this analysis. When writing legislation, the legislator is presumably doing it in accordance with the Quebec Charter. The legislative intent must be respectful of the Quebec Charter’s intent and not the other way around.
With this decision, Quebec appears to have finally caught up with Ontario’s more progressive stance on the matter of accommodating injured workers. Where Quebec has the advantage over Ontario is this SCC precedent is applied directly to its statutory rehabilitation framework for injured workers.
It remains unclear how and what effect, if any, the Caron principles will have on the Workplace Safety and Insurance Act (WFIA) obligation for employers to re-employ and offer suitable work to injured workers in Ontario. Caron certainly reinforces the duty to accommodate without undue hardship, pursuant to subsection 17(2) of the Ontario Human Rights Code (the Code), and should discourage employers who try to diminish its scope by too easily relying on the injured worker’s the inability to perform his essential duties, based on subsection 17(1) of the Code.
Some commentators have criticized this decision for adding uncertainties into the rehabilitation process of the Act and making it more unpredictable. But one thing is for certain: employers can no longer hide behind the letter of the law but will have to go beyond a restrictive interpretation and incorporate human rights legislation into the application of workers’ rights. The SCC, though not revolutionizing the law with this decision, reaffirmed that all disabled workers, independently of the origin of their disabilities, are to be treated equally.
About the author
Nathalie Léger has worked most of her career as a union advisor for public sector unions. She is now a Research Lawyer for the Centrale des Syndicats du Québec (CSQ) where she has been working since 2012. Her work brought her to develop a particular interest and expertise in constitutional law, civil liberties and human rights. She has also been responsible for researching and writing five factums for intervention proceedings at the SCC in the last five years and counsel in interventions before the SCC in the Caron decision. Amy Nguyen was called to the Quebec Bar in 2010. Since the beginning of her career, she has been a strong advocate for workers’ rights, starting with CUPE, as a sole practitioner, and in her current role as litigation lawyer at the CSQ. Her main areas of practice are worker’s compensation and labour arbitration. She regularly appears before various labour boards and has appeared twice as counsel in interventions before the SCC, notably in the recent Caron decision
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[2] In 1909, the social compromise was reached between employers and workers in the initial compensation act: in exchange for a partial but guaranteed compensation for their injury at work, the workers had to give up their rights to pursue all civil claims before the courts against their employer.