SUPREME
COURT OF CANADA
Citation: Quebec (Commission des normes, de l’équité, de la santé et de la
sécurité du travail) v. Caron, 2018 SCC 3
|
Appeal Heard:
March 30, 2017
Judgment
Rendered: February 1, 2018
Docket:
36605
|
Between:
Commission
des normes, de l’équité, de la santé et de la sécurité du travail (formerly
known as Commission de la santé et de la sécurité du travail)
Appellant
and
Alain Caron
Respondent
- and -
Attorney General
of Quebec, Administrative Labour Tribunal (formerly known as Commission des
lésions professionnelles), Miriam Home and Services, Conseil du patronat du
Québec inc., Ontario Network of Injured Workers’ Groups, Industrial Accident
Victims’ Group of Ontario, Centrale des syndicats du Québec and Canadian Union
of Public Employees
Interveners
Coram: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté
and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 58)
|
Abella J. (McLachlin C.J. and Karakatsanis, Wagner and
Gascon JJ. concurring)
|
Reasons
Concurring in the Result:
(paras. 59 to 115)
|
Rowe J. (Côté J. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
quebec (cnesst) v. caron
Commission des normes, de l’équité, de la santé et de la sécurité
du travail (formerly known as Commission de la santé et
de la sécurité du travail) Appellant
v.
Alain Caron Respondent
and
Attorney General of Quebec,
Administrative Labour Tribunal (formerly known as
Commission des lésions
professionnelles),
Miriam Home and Services,
Conseil du patronat du Québec inc.,
Ontario Network of Injured Workers’
Groups,
Industrial Accident Victims’ Group of
Ontario,
Centrale des syndicats du Québec and
Canadian Union of Public
Employees Interveners
Indexed as: Quebec (Commission des normes, de l’équité, de la santé
et de la sécurité du travail) v. Caron
2018 SCC 3
File No.: 36605.
2017: March 30; 2018: February 1.
Present: McLachlin C.J. and Abella, Karakatsanis, Wagner,
Gascon, Côté and Rowe JJ.
on appeal from the court of appeal for quebec
Workers’ compensation –– Human
rights –– Disability rights –– Return to work –– Duty to accommodate –– Worker,
victim of employment injury, requesting that employer’s duty to reasonably accommodate pursuant to Quebec Charter of human rights and freedoms be taken into account in determining availability of suitable
employment ––
Employer’s duty to reasonably accommodate worker with disability not expressly
imposed by applicable legislative scheme –– Whether employer’s duty to reasonably accommodate in
accordance with Quebec Charter applies to workers whose disability is caused by
employment injury –– Act respecting industrial
accidents and occupational diseases, CQLR, c. A‑3.001, ss. 236,
239 –– Charter of human rights and freedoms, CQLR, c. C‑12, ss. 10,
16.
Legislation –– Interpretation
–– Human rights –– “Charter values” interpretive principle –– Legislative
scheme entitling workers whose disability is caused by employment injury to
return to work with employer –– Employer’s duty to reasonably accommodate worker with
disability not expressly imposed by applicable legislative scheme –– Whether
legislative scheme should be interpreted to include duty to reasonably accommodate in accordance with Quebec Charter –– Act respecting industrial
accidents and occupational diseases, CQLR, c. A‑3.001, ss. 236,
239 –– Charter of human rights and freedoms, CQLR, c. C‑12, ss. 10,
16.
Administrative
law
–– Boards
and tribunals –– Commission des lésions
professionnelles ––
Judicial review –– Standard of review applicable to Commission’s decision refusing to
apply employer’s duty to reasonably accommodate in accordance with Quebec
Charter –– Act respecting industrial accidents and occupational diseases, CQLR,
c. A‑3.001, ss. 236, 239 – Charter of human rights and
freedoms, CQLR, c. C‑12, ss. 10, 16.
In
2004, C suffered an employment injury that rendered him unable to resume his
pre‑injury employment. He was subsequently informed that alternative
suitable employment, as defined under the Act respecting industrial
accidents and occupational diseases, was not available. At the time, the Commission de la santé et de la
sécurité du travail (“CSST”) and, on appeal, the Commission des lésions
professionnelles (“CLP”), were the administrative bodies charged with
implementing the Act. The CSST informed
C that given the unavailability of suitable employment with his employer, it
would pursue the rehabilitation process and solutions elsewhere. C argued that
this decision was premature and that his rehabilitation process with his
employer should continue to ensure implementation of the protections against
discrimination in the Quebec Charter of human rights and freedoms (“Charter”),
including the employer’s duty to accommodate. On review, the CSST concluded
that the duty to accommodate under the Charter does not apply to the Act.
The CLP dismissed C’s appeal, finding that the statutory benefits in the
legislation represent the full extent of an employer’s duty to accommodate and
that additional accommodation measures could not be imposed on an
employer. On judicial review, the Superior Court set aside this decision
and directed that the case be reconsidered in accordance with the employer’s
duty to accommodate under the Charter. The Court of Appeal agreed and
concluded that the legislation should be interpreted in accordance with the
duty to accommodate under the Charter.
Held: The appeal should be dismissed.
Per
McLachlin C.J. and Abella, Karakatsanis, Wagner
and Gascon JJ.: Quebec’s
injured worker legislation deals with workers who have become disabled as a
result of injuries suffered at their workplace. It is legislation that seeks to prevent unfair
treatment of injured workers based on their disability. It offers remedies for
the economic, personal and physical consequences of the injuries, and
seeks to ensure that the rights of workers are protected as fully as possible
so that the disabilities do not result in workplace discrimination. The
legislative scheme precludes an injured worker from instituting a civil
liability action, which means that under the scheme, there is
no other recourse for an injured worker, and no other forum in which to
vindicate his or her rights. Any solution for an injured worker
accordingly lies in the way the legislative scheme is
interpreted and applied.
The issue in this appeal is whether the employer’s duty to reasonably
accommodate someone with a disability, a core and transcendent human rights
principle, applies to workers disabled at their workplace. The Act sets
up a comprehensive scheme for the treatment of injured workers but does not expressly
impose a duty to accommodate them. The duty to accommodate requires
accommodation to the point that an employer is able to demonstrate that it
could not have done anything else reasonable or practical to avoid the negative
impact on the individual.
Like
all Quebec legislation, the Act should be interpreted in conformity with
the Quebec Charter. The duty to reasonably accommodate disabled
employees is a fundamental tenet of Canadian and, more particularly, Quebec
labour law. Since a core principle of the Charter is the duty to
accommodate, it follows that this duty applies when interpreting and applying
the provisions of Quebec’s injured worker legislation. There is no reason to
deprive someone who becomes disabled as a result of an injury at work of
principles available to all disabled persons, namely, the right to be
reasonably accommodated. An injured worker’s rights and entitlements under the Act
must therefore be interpreted and implemented in accordance with the
employer’s duty to reasonably accommodate an employee disabled by a
workplace injury. An examination of the Act’s goals and policies as well
as the entitlements it sets out – such as reinstatement, equivalent, or
suitable employment – reflect a statutory scheme that clearly anticipates that
reasonable steps will be taken to assist the disabled worker in being able to
work if possible. The duty to reasonably accommodate serves to inform how these
entitlements are to be implemented on the facts of any particular case short of
undue hardship.
Implementing
this duty in light of the Charter does not disrupt the carefully
calibrated duties and relationships that are set out in the Act. It
merely requires a more robust approach to the implementation of the rights of
disabled workers by the CSST and CLP and, by necessary implication, the
employer. It ultimately means that the CSST and the CLP have the exclusive remedial authority to impose measures on the
employer to do whatever is reasonably possible to accommodate the disabled
worker’s individual injury.
Because
the CSST and the CLP found that the concept of reasonable accommodation under
the Charter did not apply, neither made any factual findings as to
whether C was reasonably accommodated. In particular, the CLP did not make any
findings about whether the employer would have had suitable employment if it
had reasonably accommodated him. The decision of the CLP should be set aside
and the matter remitted to the Administrative Labour Tribunal (the CLP’s
institutional successor) for reconsideration taking into account the duty to
reasonably accommodate.
Per
Côté and Rowe JJ.: There is agreement with
the majority to remit the matter for a determination of whether the employer
has discharged its duty to accommodate in the circumstances, but disagreement
in applying a blanket presumption of conformity of the Act with the Charter
as this is contrary to the Court’s jurisprudence
and to s. 51 of the Charter.
The
“Charter values” interpretive principle does not allow the courts to
generate in the name of Charter values an interpretation unsupported by
the text of the statute. The Act and the Charter have different
purposes. The Act is a compensatory, no‑fault scheme for
employment injuries. The Charter has the wider goal of safeguarding
fundamental rights, including the right to equality. This includes the duty to
accommodate. Unlike the Act, the origin of the disability does
not matter for the Charter; while it need not be a workplace accident,
it includes disability arising from such an accident. The two legal schemes are
distinct conceptually, which means that a worker’s Charter rights exist
in addition to his or her statutory rights under the Act.
The
duty to accommodate in situations such as the present one does not require an
employer to create a new position from scratch for a disabled worker. This
would not be a reasonable accommodation. Rather, it means that when an
employer is looking at available positions, the employer is required to
consider whether it has any suitable employment as defined by the Act,
and also what its obligations under the Charter require with respect to
flexibility in work standards. If what stands in the way of a position being
suitable is a reasonable accommodation (to the point of undue hardship), then
the employer is required by the Charter to take the steps needed to
accommodate the disabled worker.
The
decision under review in this case is that of the CLP stating that it could not
grant C a remedy under the Charter. Given the importance of this
question to the legal system, including the system of administrative justice,
the applicable standard of review is correctness. The CLP’s statement to the
effect that the Act constitutes the full extent of an employer’s duty to
accommodate was accordingly incorrect in that the CLP had the authority and the
duty to give effect to C’s Charter rights, as well as to his rights
under the Act.
The
Court has set out a two‑part inquiry to determine whether an
administrative tribunal has jurisdiction to grant various remedies under s.
24(1) of the Canadian Charter . The first question is institutional: Does
the tribunal have jurisdiction to grant Charter remedies? If a tribunal
has the power to decide questions of law, the answer to this question is “yes”.
The second question is specific to the remedy sought: Can the tribunal grant
the remedy having regard to its statutory mandate? This question concerns
legislative intent. While this framework was set out in the context of the
Canadian Charter , there is no reason why the underlying rationale for
the framework should not also apply to the Quebec Charter.
In
carrying out its statutory mandate, the CLP had (and the Administrative Labour
Tribunal now has) jurisdiction to grant remedies under the Charter,
including the remedy sought in this case for an order requiring the employer to
accommodate C when determining whether it has suitable employment. Indeed,
the CLP expressly had the power to decide questions of law and the type of
remedy sought here fell within the powers granted to it. Therefore, the CLP
erred in determining that its statutory grant of power did not give it authority
to decide this matter.
Cases
Cited
By
Abella J.
Applied: Quebec (Commission des droits de la personne et des droits de la
jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R.
789; referred to: Société des établissements de plein air du Québec v.
Syndicat de la fonction publique du Québec, 2009 QCCA 329; Syndicat
canadien des communications, de l’énergie et du papier, section locale 427 v.
Tembec, usine de Matane, 2012 QCCA 179; Béliveau
St‑Jacques v. Fédération des employées et employés de services publics
inc., [1996] 2 S.C.R. 345; de Montigny v. Brossard (Succession),
2010 SCC 51, [2010] 3 S.C.R. 64; Hydro‑Québec v. Syndicat des
employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec,
section locale 2000 (SCFP‑FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561; Quebec
(Commission des droits de la personne et des droits de la jeunesse) v. Montréal
(City), 2000 SCC 27, [2000] 1 S.C.R. 665; Commission scolaire régionale
de Chambly v. Bergevin, [1994] 2 S.C.R. 525; British Columbia (Public
Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; British
Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of
Human Rights), [1999] 3 S.C.R. 868; Council of Canadians with
Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Moore
v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; Central
Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R.
489; McGill University Health Centre (Montreal General Hospital) v. Syndicat
des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R.
161; Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591;
Quebec (Commission des droits de la personne et des droits de la jeunesse)
v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC
39, [2015] 2 S.C.R. 789; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765;
Tranchemontagne v. Ontario (Director, Disability Support Program), 2006
SCC 14, [2006] 1 S.C.R. 513; Gauthier v. Demers, 2007 QCCA 1433, 65
Admin. L.R. (4th) 222; Gougeon (Re), 1999 CanLII 21577.
By Rowe J.
Applied:
Quebec (Commission des droits de la personne et des droits de la jeunesse) v.
Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789; R.
v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; referred to: Gauthier
v. Demers, 2007 QCCA 1433, 65 Admin. L.R. (4th) 222; Bell ExpressVu
Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v.
Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612; Béliveau St‑Jacques v.
Fédération des employées et employés de services publics inc., [1996]
2 S.C.R. 345; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16,
[2015] 2 S.C.R. 3; Quebec (Commission des droits de la personne et des
droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training
Center), 2015 SCC 39, [2015] 2 S.C.R. 789; Ontario Human Rights
Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Hydro‑Québec
v. Syndicat des employé‑e‑s de techniques professionnelles et de
bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ), 2008 SCC
43, [2008] 2 S.C.R. 561; Ford v. Quebec (Attorney General), [1988] 2 S.C.R.
712; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R.
791; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; R. v. 974649
Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Oakes, [1986]
1 S.C.R. 103; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2
S.C.R. 551; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC
11, [2013] 1 S.C.R. 467; Ktunaxa Nation v. British Columbia (Forests,
Lands and Natural Resource Operations), 2017 SCC 54; Association des
cadres de la Société des casinos du Québec v. Société des casinos du Québec,
2014 QCCA 603; Université de Montréal v. Québec (Commission des droits de la
personne et des droits de la jeunesse), 2006 QCCA 508; Moulin de préparation
de bois en transit de St‑Romuald v. Commission d’appel en matière de
lésions professionnelles, [1998] C.A.L.P. 574; Okwuobi v. Lester B.
Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Université
McGill v. McGill University Non Academic Certified Association (MUNACA),
2015 QCCA 1943; Parry Sound (District) Social Services Administration Board
v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157.
Statutes
and Regulations Cited
Act
respecting administrative justice, CQLR, c. J‑3.
Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001, ss. 1, 2 “benefit”, “employment injury”,
“equivalent employment”, “suitable employment”, 4, 32, 48, 49 para. 1, 57(1),
145 et seq., 145, 166, 167, 170, 171, 172, 173 paras. 1 and 2, 174,
176, 181, 235(1), 236, 239, 240, 242 paras .1 and 2, 244, 255, 281, 326, 349,
351 para. 1, 358, 359, 369 [rep. 2015, c. 15, s. 116], 377 [rep. idem],
378 [rep. idem], 438.
Act to establish the Administrative Labour Tribunal, CQLR, c. T‑15.1, ss. 1 para. 2, 6, 9, 10.
Canadian
Charter of Rights and Freedoms, ss. 1 , 2 (a), 24(1) .
Charter of human rights and freedoms, CQLR,
c. C‑12, preamble, ss. 1 to 38, 1 to 9, 3, 9.1, 10, 16 to 20, 16,
49, 51, 52, 53.
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit
constitutionnel, 6e éd. Cowansville, Que.: Yvon Blais, 2014.
Cormier, France. “La victime de harcèlement et le processus de
réadaptation professionnelle”, dans Service de la formation continue du Barreau
du Québec, vol. 263, Développements récents en droit de la santé et
sécurité au travail. Cowansville, Que.: Yvon Blais, 2007, 113.
APPEAL
from a judgment of the Quebec Court of Appeal (Hilton, Bélanger and Schrager JJ.A.),
2015 QCCA 1048, [2015] AZ‑51185251, [2015] J.Q. no 5365
(QL), 2015 CarswellQue 5584 (WL Can.), affirming a decision of Dugré J.,
2014 QCCS 2580, [2014] AZ‑51080015, [2014] J.Q. no 5490
(QL), 2014 CarswellQue 5655 (WL Can.), allowing an application for judicial
review of a decision of the Commission des lésions professionnelles and
remitting the matter for reconsideration, 2012 QCCLP 3625, [2012] C.L.P. 173,
[2012] AZ‑50863875, 2012 LNQCCLP 606 (QL). Appeal
dismissed.
François Bilodeau and Lucille Giard, for the appellant.
Sophie Cloutier and Frédéric Tremblay, for the respondent.
Patrice Claude, Dana Pescarus and Abdou
Thiaw, for
the intervener the Attorney General of Quebec.
Marie‑France Bernier, for the intervener the Administrative
Labour Tribunal (formerly known as Commission des lésions professionnelles).
Pierre Douville and Isabelle Auclair, for the intervener Miriam Home
and Services.
Jean‑Claude Turcotte and Sébastien Parent, for the intervener Conseil du
patronat du Québec inc.
Maryth Yachnin, Ivana Petricone and Rachel Weiner, for the interveners the Ontario
Network of Injured Workers’ Groups and the Industrial Accident Victims’ Group
of Ontario.
Claudine Morin, Nathalie Léger and Amy Nguyen, for the intervener Centrale
des syndicats du Québec.
Josée Aubé, Céline Giguère and Julie Girard‑Lemay, for the intervener the Canadian
Union of Public Employees.
The judgment of McLachlin C.J. and
Abella, Karakatsanis, Wagner and Gascon JJ. was delivered by
Abella J. —
[1]
The Act Respecting Industrial Accidents and
Occupational Diseases[1] governs the workplace injury compensation scheme in Quebec. It
stipulates that a worker who becomes disabled as a result of an employment
injury receives a number of benefits, including income replacement indemnities,
assistance with rehabilitation, and, when certain conditions are met, the
“right to return to work” with his or her employer.
[2]
An injured worker who is able to return to his
or her employment within a certain period of time has the right to be
reinstated to his or her pre-injury employment or an equivalent one.[2] If the employment injury renders a worker unable to return
to his or her pre-injury employment, there is a right to the first suitable
employment that becomes available with the employer.[3]
[3]
The issue in this
appeal is whether the Commission de la santé et de la sécurité du travail (CSST) and the
Commission des lésions professionnelles (CLP) must take into account the employer’s duty to reasonably accommodate
an injured worker in determining if and how a return to work is possible under
the scheme.
[4]
This case is in classic reasonableness territory
— the CLP is interpreting the scope and application of its home statute. In my
respectful view, however, its conclusion that employers do not have a duty of
reasonable accommodation under the scheme, does not survive a reasonableness
review.
Background
[5]
Alain Caron worked as a special educator at
Centre Miriam, a center for persons with intellectual disabilities. On October
20, 2004, Mr. Caron hit his left elbow on a door frame in the course of his
duties and developed lateral epicondylitis, or tennis elbow. This was
recognized as an employment injury within the meaning of s. 2 of the Act,
which states:
. . .
“employment injury”
means an injury or a disease arising out of or in the course of an industrial
accident, or an occupational disease, including a recurrence, relapse or
aggravation;
[6]
The day after Mr. Caron’s injury, Centre Miriam
gave him a temporary assignment as the team leader for the night shift. At the
time, Centre Miriam was responsible for transferring patients of the
Rivière-des-Prairies Hospital with intellectual or developmental
disabilities to locations tailored to their needs, such as specialized
residences. Mr. Caron helped with the required paperwork as well as with training
and support to new and existing personnel on the night shift.
[7]
Centre Miriam ended Mr. Caron’s temporary
assignment when the process of transferring persons in its care was completed
in 2007. It also decided that, given his disability, Mr. Caron could not return
to his pre-injury position as an educator,
and indicated that it had no suitable employment for Mr. Caron.
[8]
At the time, the
CSST and, on appeal, the CLP were the administrative bodies charged with
implementing the Act.[4] The
CSST has exclusive jurisdiction to
examine and decide any question under the Act,[5] including findings relating to the ability of workers to return to
their pre-injury employment or suitable employment (Société des
établissements de plein air du Québec v. Syndicat de la fonction publique du
Québec, 2009 QCCA 329 (SEPAQ); Syndicat canadien des
communications, de l'énergie et du papier, section locale 427 v. Tembec, usine
de Matane, 2012 QCCA 179). It has authority to “render its decisions
according to equity and upon the real merits and justice of the case”.[6] Its decision is first reviewed internally[7] and can then be challenged before the
CLP,[8] which has exclusive jurisdiction
on appeal.[9]
[9]
The CLP can make the decision or order that, in
its opinion, should have been made.[10] It can decide any question of law or fact necessary for the
exercise of its jurisdiction,[11] and can make any order it considers appropriate to safeguard the
rights of the parties.[12]
[10]
The CSST informed
Mr. Caron that, given the fact that there was no suitable employment with
Centre Miriam, it would pursue the rehabilitation process and solutions
elsewhere. Mr. Caron argued that this decision was premature and that
his rehabilitation process with Centre Miriam should continue in order to
ensure implementation of the protections against discrimination in the Quebec Charter
of Human Rights and Freedoms,[13] including the employer’s duty to accommodate.
[11]
On review, the CSST concluded that the duty to accommodate
under the Quebec Charter does not apply to the Act.
[12]
The CLP dismissed Mr. Caron’s appeal ([2012]
C.L.P. 173). It concluded that the statutory benefits in the legislation
represent the full extent of an employer’s duty to accommodate and that additional
accommodation measures could not be imposed on an employer. It also concluded
that Mr. Caron’s right to return to work had expired.
[13]
On judicial review, the Quebec Superior
Court set aside the CLP’s decision and directed that the case be reconsidered
in accordance with the employer’s duty to accommodate under the Quebec
Charter (2014 QCCS 2580).
[14]
The Quebec Court of Appeal dismissed the appeal
(2015 QCCA 1048). It agreed that the legislation should be interpreted and
applied in accordance with the provisions of the Quebec Charter,
including the employer’s duty to accommodate. It concluded that this duty under
the Quebec Charter should be integrated into the legislation. I agree.
Analysis
[15]
Quebec’s injured worker legislation “expresses a well thought‑out social
compromise between various contradictory forces” (Béliveau St-Jacques
v. Fédération des employées et employés de services publics inc., [1996] 2
S.C.R. 345, at para. 114).
[16]
The development and purpose of the scheme were
described in Béliveau as being to “remov[e] work accidents from the
purview of civil liability” (para. 109). The statutory compromise reached in
the original legislation in 1909 was that in exchange for avoiding the
“uncertainties of civil proceedings” (para. 109) and having to prove an
employer’s fault, injured workers were entitled to fault-free, partial and
fixed-sum compensation. In exchange, in other words, for workers giving up the
possibility of full compensation, employers had to provide partial compensation
when an accident occurred. The costs were divided between workers and employers
(see de Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64, at para.
42).
[17]
When legislative reforms were introduced in
1985, the compensation system was revised but the underlying principles were
not. Moreover, under s. 349, any matters contemplated by the scheme were
conferred exclusively on the CSST.
[18]
Section 438 is the provision that makes the Act
an exclusive scheme:
438. No worker who has suffered an employment injury may institute a
civil liability action against his employer by reason of his employment injury.
That means that under the
scheme,[14] there is
no other recourse for an injured worker, and no other forum in which to
vindicate his or her rights (SEPAQ; Tembec). Any solution,
therefore, lies in the way the legislative scheme is interpreted and applied.
[19]
Like similar legislation across Canada, Quebec’s
injured worker legislation deals with workers who have become disabled as a
result of injuries suffered at their workplace. It is, in effect, legislation
that seeks to prevent unfair treatment of injured workers based on their
disability. It offers remedies for the economic, personal and physical
consequences of the injuries, and seeks to ensure that the rights of workers
are protected as fully as possible so that the disabilities do not result in
workplace discrimination. The Quebec legislation expressly acknowledges this in
s. 32, which states:
32.
No employer may dismiss, suspend or transfer a worker or practice
discrimination or take reprisals against him, or impose any other sanction upon
him because he has suffered an employment injury or exercised his rights under
this Act.
[20]
The issue in this appeal is whether the
employer’s duty to reasonably accommodate someone with a disability, a core and
transcendent human rights principle, applies to workers disabled at their
workplace. The Act sets up a comprehensive scheme for the
treatment of injured workers but does not expressly impose a duty to
accommodate them.
[21]
The Quebec Charter imposes a duty to
accommodate in ss. 10 and 16:
10. Every person has a right to full and equal recognition and exercise
of his human rights and freedoms, without distinction, exclusion or preference
based on race, colour, sex, gender identity or expression, pregnancy, sexual
orientation, civil status, age except as provided by law, religion, political
convictions, language, ethnic or national origin, social condition, a handicap
or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or
preference has the effect of nullifying or impairing such right.
16. No one may practise discrimination in respect of the hiring,
apprenticeship, duration of the probationary period, vocational training,
promotion, transfer, displacement, laying-off, suspension, dismissal or
conditions of employment of a person or in the establishment of categories or
classes of employment.
The issue is whether the
legislative scheme should be interpreted to include a duty to accommodate in
line with the approach taken pursuant to these provisions of the Quebec Charter.
[22]
The duty to reasonably accommodate disabled
employees is a fundamental tenet of Canadian and, more particularly, Quebec
labour law. The goal of the duty to accommodate in the employment context was
summarized by Deschamps J. as being “to ensure that an employee who is able to
work can do so. . . . The purpose of the duty to accommodate is to ensure that
persons who are otherwise fit to work are not unfairly excluded where working
conditions can be adjusted without undue hardship” (Hydro-Québec v. Syndicat
des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec,
section locale 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561, at para.
14. See also Quebec (Commission des droits de la
personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R.
665, at para. 36; Commission scolaire régionale de Chambly v. Bergevin,
[1994] 2 S.C.R. 525, at p. 544). The duty reflects a
choice by legislatures to ensure “that the standards governing the performance
of work should be designed to reflect all members of society, in so far as this
is reasonably possible” (British Columbia (Public Service Employee Relations
Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (Meiorin), at para. 68).
[23]
In British Columbia (Superintendent of Motor
Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R.
868 (Grismer), McLachlin J. explained that
Employers and others governed by human
rights legislation are now required in all cases to accommodate the
characteristics of affected groups within their standards, rather than
maintaining discriminatory standards supplemented by accommodation for those
who cannot meet them. Incorporating accommodation into the standard itself
ensures that each person is assessed according to her or his own personal
abilities, instead of being judged against presumed group characteristics.
[Emphasis in original; para. 19.]
[24]
As McLachlin J. explained in Meoirin,
“there may be different ways to perform the job while still accomplishing the
employer’s legitimate work-related purpose . . . . The skills, capabilities and
potential contributions of the individual claimant and others like him or her
must be respected as much as possible” (para. 64).
[25]
The duty to accommodate is not unlimited; its
scope in any particular case is defined by the symmetrical concepts of
“reasonable accommodation” and “undue hardship”. In Council of Canadians
with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, this Court
observed that “[u]ndue hardship implies that there may necessarily be some
hardship in accommodating someone’s disability, but unless that hardship
imposes an undue or unreasonable burden, it yields to the need to accommodate”
(para. 122), explaining:
The jurisprudence of this Court
reveals that undue hardship can be established where a standard or barrier is
“reasonably necessary” insofar as there is a “sufficient risk” that a
legitimate objective like safety would be threatened enough to warrant the
maintenance of the . . . standard . . .; where “such steps as may be reasonable
to accommodate without undue interference in the operation of the employer’s
business and without undue expense to the employer” have been taken . . .;
where no reasonable alternatives are available . . .; where only “reasonable
limits” are imposed on the exercise of a right . . .; where an employer or
service provider shows “that it could not have done anything else reasonable or
practical to avoid the negative impact on the individual” . . . . The point of
undue hardship is reached when reasonable means of accommodation are exhausted
and only unreasonable or impracticable options for accommodation remain.
[Citations omitted; para. 130.]
[26]
As Deschamps J. explained in Hydro-Québec,
What is really required is not
proof that it is impossible to integrate an employee who does not meet a
standard, but proof of undue hardship, which can take as many forms as there
are circumstances.
. . .
. . . The employer does
not have a duty to change working conditions in a fundamental way, but does
have a duty, if it can do so without undue hardship, to arrange the employee’s
workplace or duties to enable the employee to do his or her work. [paras. 12
and 16]
[27]
In short, the duty to accommodate requires
accommodation to the point that an employer is able to demonstrate “that it
could not have done anything else reasonable or practical to avoid the negative
impact on the individual” (Moore v. British Columbia (Education), [2012]
3 S.C.R. 360, at para. 49, quoting Meiorin, at para. 38; Central
Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R.
489, at pp. 518-19; and VIA Rail, at para. 130). The relevant
considerations depend “on the factors relevant to the circumstances and the
legislation governing each case” (Via
Rail, at para. 123; Central Alberta Dairy Pool, at pp.
520-21).
[28]
Deschamps J. in McGill University Health
Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital
général de Montréal, [2007] 1 S.C.R. 161, stressed that what is involved is
an individualized assessment process:
The importance of the
individualized nature of the accommodation process cannot be minimized. The
scope of the duty to accommodate varies according to the characteristics of
each enterprise, the specific needs of each employee, and the specific
circumstances in which the decision is to be made. [para. 22]
(See also VIA Rail, at
para. 123.)
[29]
Most recently, Gascon J. in his reasons in Stewart
v. Elk Valley Coal Corp., [2017] 1 S.C.R. 591, dissenting but not on
this point, summarized the operative principles: an employer is not required to
establish that it is “impossible . . . to accommodate”, only that nothing else
reasonable or practical could be offered; an individualized analysis is
required; the duty to accommodate includes both procedural and substantive
duties; and the undue hardship threshold means an employer will always bear
some sort of hardship (paras. 125-28).
[30]
A duty to accommodate has been found under all
of Canada’s human rights statutes prohibiting discrimination, including under
the Quebec Charter (Quebec (Commission des droits de la personne et
des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace
Training Center), [2015] 2 S.C.R. 789).
[31]
This brings us to the heart of this appeal,
namely whether the legislative scheme should be interpreted and implemented by
taking into account the duty imposed on employers to reasonably accommodate, in
light of ss. 10 and 16 of the Quebec Charter.
[32]
The tools to address the issues in this case are
found in this Court’s decision in Quebec (Commission des droits de la
personne et des droits de la jeunesse) v. Communauté urbaine de Montréal,
[2004] 1 S.C.R. 789, where LeBel J. confirmed that Quebec legislation must be
interpreted in accordance with the principles of the Quebec Charter:
In Quebec law, in matters within
the jurisdiction of the National Assembly, the Quebec Charter has been
elevated to the rank of a source of fundamental law. The interpretation of
legislation must draw on its principles. The preliminary provision of the Civil
Code of Québec, S.Q. 1991, c. 64, states that the Code, as the jus
commune of Quebec, must be interpreted in harmony with the Quebec Charter.
[Emphasis added; para. 20.]
It is an approach that
has generally been followed in the Quebec jurisprudence. It endorses the view
that all Quebec law should be interpreted in conformity with the Quebec Charter.
It is, as a result, unnecessary to deal with Mr. Caron’s argument, raised for
the first time in this Court, that R. v. Conway, [2010] 1 S.C.R. 765,
should be applied.
[33]
This approach has also been applied outside
Quebec, as this Court noted in Via Rail:
. . . human rights
legislation, as a declaration of “public policy regarding matters of general
concern”, forms part of the body of relevant law necessary to assist a tribunal
in interpreting its enabling legislation. [para. 114]
(See also Tranchemontagne v.
Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513.)
[34]
It was applied to the injured worker legislation
by the Quebec Court of Appeal in Gauthier v. Demers (2007), 65 Admin.
L.R. (4th) 222. The issue in that case was the meaning of “another good and
sufficient reason” under s. 255 of the Act, which states that to rebut
the presumption that an action was taken against the worker because of an
employment injury or the exercise of a right under the Act, in breach of
s. 32 of the Act, the employer must prove that the action was
taken for “another good and sufficient reason”. Vézina J.A. emphasized the
quasi-constitutional nature of the Quebec Charter and its interaction
with other laws:
[TRANSLATION] In a way, the provisions of the Charter that protect
fundamental rights form an integral part of every statute without the statute
itself having to say so.
More
specifically, the provision of the [Act Respecting Occupational Health and
Safety, R.S.Q., c. S-2.1] that refers to a “good and sufficient reason”
must be interpreted as if it included the words “that is consistent with the Charter”.
This is the principle of supremacy of the Charter, a
quasi-constitutional Act. [paras. 51 and 52]
[35]
Since a core principle of the Quebec Charter is
the duty to accommodate, it follows that this duty applies when interpreting
and applying the provisions of Quebec’s injured worker legislation. There is
no reason to deprive someone who becomes disabled as a result of an injury at
work, of principles available to all disabled persons, namely, the right to
be reasonably accommodated.
[36]
Implementing this duty in light of the Quebec Charter
does not disrupt the carefully calibrated duties and relationships that are set
out in the Act. It merely requires a more robust approach to the
implementation of the rights of disabled workers by the CSST and CLP and, by
necessary implication, the employer.
[37]
Interpreting and implementing the Act in
a given case in accordance with the principle of reasonable accommodation is,
in fact, consistent with the scheme’s efforts to enable the worker to return to
work. If we examine 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.
[38]
The Act entitles an injured worker to
reinstatement in his or her former job, to reassignment to “equivalent
employment”, or to hold “suitable employment”, as set out in ss. 236 and 239:
236. A worker who has suffered an employment injury and again becomes
able to carry on his employment is entitled to be reinstated by preference to
others in his employment in the establishment where he was working when the
employment injury appeared or reassigned to equivalent employment in that
establishment or in another establishment of his employer.
239. A worker who remains unable to carry on his employment as a result
of an employment injury and who becomes able to carry on suitable employment is
entitled to hold the first suitable employment that becomes available in an
establishment of his employer.
The right conferred by the first paragraph is exercised subject to
the rules respecting seniority prescribed by the collective agreement
applicable to the worker.
[39]
Workers who become able to carry on the
employment they held at the time of their injury, are entitled to be reinstated
in their pre-injury jobs or to be reassigned to “equivalent employment” with
the employer.
[40]
“Equivalent employment” is defined in s. 2 as an
“employment of a similar nature to the employment held by the worker when he
suffered the employment injury, from the standpoint of vocational
qualifications required, wages, social benefits, duration and working
conditions”. This arises in circumstances where a worker is technically able to
do his pre-injury employment but cannot return to it for reasons unrelated to
the injury, such as the elimination of the position (France Cormier, “La
victime de harcèlement et le processus de réadaptation professionnelle” in
Barreau du Québec, vol. 263, Développements récents en droit de la santé et
sécurité au travail (2007), 113; Gougeon (Re), 1999 CanLII 21577
(Que. C.L.P.)).
[41]
As a result, workers who recover sufficiently
that they can return to their pre-injury employment within the
stipulated time, return either to that job or to an equivalent one, with the
same salary and benefits they would have had if they had continued to work.[15] Workers who are able to carry on their pre-injury employment after
their right to return to work has expired, will have access to assistance in
finding employment elsewhere[16] and to income replacement benefits for a maximum period of one
year.[17]
[42]
And under s. 239 of the Act, a worker who
becomes able to carry on “suitable employment”, is entitled to the first
suitable employment in the workplace. “Suitable employment” is defined in s. 2
as an “appropriate employment that allows a worker who has suffered an
employment injury to use his remaining ability to work and his vocational
qualifications, that he has a reasonable chance of obtaining and the working
conditions of which do not endanger the health, safety or physical well-being
of the worker, considering his injury”.
[43]
Workers who obtain “suitable employment” with
the employer receive the salaries and benefits related to this work, based on
their seniority and accumulated service.[18] A reduced income replacement indemnity helps compensate for any
loss in salary between the pre-injury employment and the “suitable employment”.[19]
[44]
If the employer has no “suitable employment”
available, the worker can have his or her vocational potential evaluated to
help determine what employment would be suitable elsewhere, get access to
vocational training programs, and receive assistance in finding employment.[20]
[45]
Each of these entitlements — reinstatement,
equivalent, or suitable employment — is reflective of ensuring “that an
employee who is able to work can do so” (Hydro-Québec, at para. 14). And
this, in turn, is consistent with the employer’s duty to reasonably
accommodate, a duty which informs how these entitlements are to be implemented
on the facts of any particular case.
[46]
The Act’s provisions
dealing with rehabilitation also reflect the duty to accommodate. A worker who
suffers permanent impairment due to his employment injury is entitled to
rehabilitation measures with a view to his social and professional
reintegration.[21] The worker will receive a personal rehabilitation plan, prepared
and implemented by the CSST with the worker’s cooperation.[22] This plan may include a physical, social and professional
rehabilitation program.
[47]
The purpose of the professional rehabilitation
program is to facilitate the worker’s reinstatement in his or her employment or
an equivalent employment or, where that objective is not feasible, to
facilitate his or her access to suitable employment.[23] The Act defines a professional
rehabilitation program broadly. It may include measures like a refresher
program, an evaluation of vocational potential, a vocational training program,
assistance in finding employment, the payment of subsidies to an employer to
favour the employment of workers who have sustained permanent physical or
mental impairments, the payment of any cost incurred to explore the employment
market or to move near a new place of employment, the payment of subsidies to
the worker, and, notably, the adaptation of a position.[24]
[48]
The cost of rehabilitation is assumed by the
CSST.[25] It in turn collects the money it needs for the administration of
the Act from employers.[26] It also attributes to the employer the cost of benefits payable by
reason of an industrial accident suffered by a worker while in the employ of
the employer.[27]
[49]
The CSST may also, under s. 176,[28] reimburse the cost of adapting a position, if the adaptation
enables a worker who has sustained permanent physical impairment as a result of
his or her employment injury, to carry on his or her employment,
“equivalent employment” or “suitable employment,” including expenses incurred
for purchasing and installing the required materials and equipment. This
provision anticipates that there may be compensable changes to a workplace
which has been adapted to allow a worker to return to any pre-injury, equivalent
or suitable employment. This too shows that the scheme clearly envisions some
form of accommodation for the worker.
[50]
As this review shows, the objectives of Quebec’s
injured worker scheme overlap with those of the Quebec Charter.
The injured worker scheme seeks “to facilitate the worker’s reinstatement in
his employment or an equivalent employment or, where that object is not
attainable, to facilitate his access to suitable employment”.[29] Similarly, Quebec’s Charter seeks “to ensure that
persons who are otherwise fit to work are not unfairly excluded where working
conditions can be adjusted without undue hardship” (Hydro-Québec, at
para. 14). This is the essence of the duty of reasonable accommodation. The
injured worker scheme sets out various types of accommodation, such as
reinstatement, equivalent employment, or failing that, the most suitable
employment possible. The fact that the scheme sets out some type of
accommodation does not negate the broader, general accommodation required by
the Quebec Charter.
[51]
An injured worker’s rights and entitlements
under the Act must therefore be interpreted and implemented in
accordance with the employer’s duty to reasonably accommodate an
employee disabled by a workplace injury, which in turn means that the CSST and the CLP have the exclusive remedial
authority, in implementing ss. 236 and 239 of the Act dealing with
reinstatement, equivalent, or suitable employment, to impose measures on the
employer to do whatever is reasonably possible to accommodate the disabled
worker’s individual injury and the circumstances that flow from it.
[52]
How then does this apply in the circumstances of
this case?
[53]
Mr. Caron is relying on his right to return to
suitable employment under s. 239 of the Act. Interpreting the
provision in accordance with Quebec Charter principles and the
objectives of the Act means that the employer has a duty to reasonably
accommodate Mr. Caron in determining whether suitable employment is available
under s. 239.
[54]
Mr. Caron identified two “suitable” jobs at
Centre Miriam which he claimed he could perform if he was reasonably
accommodated: (1) his pre-injury employment position as an educator, provided
that certain modifications were made to accommodate his functional disability,
and (2) the team leader position he held during his temporary assignment with
Centre Miriam.
[55]
Because the CSST and the CLP found that the
concept of reasonable accommodation under the Quebec Charter did not
apply, neither made any factual findings as to whether Mr. Caron was reasonably
accommodated. In particular, the CLP did not make any findings about whether
the employer would have had “suitable employment” if it had reasonably
accommodated him. It may be that if the employer had considered its duty to
accommodate in its search for suitable employment, it would have found other
suitable positions for Mr. Caron to occupy.
[56]
Given the direction in these reasons that the
statutory scheme is to be interpreted and applied in accordance with the
employer’s duty to reasonably accommodate under the Quebec Charter, it
seems to me that Mr. Caron should be given the opportunity to attempt to
vindicate his rights as an injured worker in accordance with the revised
approach. I appreciate that these proceedings have been protracted, perhaps
even unduly, but important legal principles had yet to be resolved.
[57]
As a result, like the Court of Appeal, I would
set aside the decision of the CLP and remit the matter to the Administrative
Labour Tribunal (the CLP’s institutional successor) so that the claim of Mr.
Caron can be decided taking into account the employer’s duty to reasonably
accommodate in accordance with the Quebec Charter. Section 240[30] of the Act stipulates that the entitlements in the scheme
are time limited. 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.
[58]
I would dismiss the appeal with costs.
The reasons of Côté and Rowe JJ. were delivered by
ROWE J. —
I.
Introduction
[59]
I have had the benefit of reading the reasons of
Justice Abella and I agree with her in the result, to remit the matter to the Administrative
Labour Tribunal (“ALT”), formerly known as the Commission des lésions
professionnelles (“CLP”), for a determination of whether the
employer has discharged its duty to accommodate.
[60]
Where Justice Abella and I differ is in the
approach to attain this result. My colleague takes an approach in
which she interprets the legislative scheme “to include a duty
to accommodate” (reasons of Abella J., at para. 21) in accordance with the view
that “all Quebec law should be interpreted in conformity with the Quebec
Charter” (reasons of Abella J., at para. 32 (emphasis in original)). In my
view, this goes beyond the approach to statutory interpretation set out by this
Court whereby “[t]he interpretation of legislation must draw on [the]
principles [of the Quebec Charter]” (Quebec (Commission des droits de
la personne et des droits de la jeunesse) v. Communauté urbaine de
Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789, at para. 20 (emphasis
added)). It also goes beyond what the Quebec Court of Appeal did in Gauthier
v. Demers, 2007 QCCA 1433, 65 Admin L.R. (4th) 222, where the Quebec
Charter of human rights and freedoms, CQLR, c. C-12 (“Quebec
Charter”), was used to conclude that a discriminatory reason could
not be “good and sufficient” within the meaning of the Act respecting
industrial accidents and occupational diseases, CQLR, c. A-3.001 (“Act”).
In effect, my colleague shoehorns the duty to accommodate into an Act that was
not created for that purpose and extends the scope of a provision of law. This
is contrary to this Court’s jurisprudence and to s. 51 of the Quebec
Charter.
[61]
As this Court explained in Bell ExpressVu
Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, the “Charter
values” interpretive principle serves a narrow purpose: when faced with two
interpretations — one compliant with the Canadian Charter of Rights and
Freedoms (“Canadian Charter ”), the other infringing it — courts can
apply the presumption of compliance with the Canadian Charter to read
the statute in a manner respectful of the Charter value in question.
This allows the statute to remain in force — untouched — and interpreted such
that it complies with the Canadian Charter . This principle, however,
does not allow the courts to generate in the name of Charter values an
interpretation unsupported by the text of the statute (Bell ExpressVu,
at para. 62, R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612,
at para. 12).
[62]
Given the nature of the Quebec Charter as
a quasi-constitutional instrument and its similarities with the Canadian
Charter with respect to derogation, interpretation, and justification, the
interpretative role of the courts should operate in a similar way for both
instruments. A blanket presumption of conformity with the Quebec Charter could
“frustrate true legislative intent, contrary to what is mandated by the
preferred approach to statutory construction” (Bell ExpressVu, at
para. 64) just as such a blanket presumption could for the Canadian Charter .
[63]
Further, while pursuant to s. 53, the Quebec
Charter can be used “[i]f any doubt arises in the interpretation of a
provision” of an Act, s. 51 of the Quebec Charter “makes a point of
stating that the [Quebec] Charter must not, as a general rule, be
interpreted so as to extend or amend the scope of a provision of law” (Béliveau
St-Jacques v. Fédération des employées et employés de services publics inc.,
[1996] 2 S.C.R. 345, at para. 131). With respect, my colleague’s approach
conflicts with these rules.
[64]
The analytical path I propose is similar to that
taken by the courts below. It is based on the jurisdiction of the CLP and the
ALT as administrative tribunals with the power to decide questions of law and
to make orders appropriate to vindicate the rights of the parties. This
approach maintains the distinct character of the two regimes and corresponds to
the Quebec Charter remedies Mr. Caron sought before the CLP.
II.
Facts
[65]
On October 20, 2004, the respondent, Mr. Alain
Caron, developed epicondylitis (often referred to as “tennis elbow”) while
carrying out his duties as a special educator at Centre Miriam, a center for
persons with intellectual disabilities. He was temporarily re-assigned, the
following day, as team leader of the night shift. This re-assignment was
possible due to the needs of Centre Miriam at the time; it was receiving a
number of patient transfers from another hospital.
[66]
On October 6, 2006, the Commission de la santé
et de la sécurité du travail (“CSST”) decided that the employment injury had
consolidated, leaving permanent impairment and functional limitations. On
October 5, 2007, Centre Miriam ended Mr. Caron’s temporary re-assignment
because the patient transfer process had been completed. The CSST decided at
that point that Mr. Caron could return to his original employment. This
decision was contested by Centre Miriam; it was reversed by the CLP in 2009.
[67]
On April 16, 2010, Centre Miriam informed the
CSST that it did not have suitable employment for Mr. Caron. This was
challenged by Mr. Caron’s union on the grounds that Centre Miriam should have
taken into account its duty to accommodate pursuant to the Quebec Charter in
determining whether there was suitable employment. In the union’s view, there
were two positions that would have been available for Mr. Caron, had it done
so. The CSST sided with Centre Miriam, on the basis that the Act is a
complete accommodation scheme for employment injuries. In the CSST’s view, it
follows that there is no need to look to the Quebec Charter to
supplement what is provided for under the Act. Centre Miriam terminated Mr.
Caron’s employment shortly thereafter.
[68]
Mr. Caron contested the CSST’s decision before
the CLP. It is this decision that is the subject of judicial review.
III.
Judicial History
A.
Commission des lésions professionnelles, 2012
QCCLP 3625, [2012] C.L.P. 173
[69]
In its decision, the CLP recognized that it has the power to
decide any question of law necessary to the exercise of its jurisdiction and
that this carried with it the authority and the duty to apply the Quebec
Charter.
[70]
However, the CLP took the view that it was bound by the
jurisprudence of the Quebec Court of Appeal and by its own decisions to the
effect that measures provided for under the Act exhaust the duty to
accommodate. Accordingly, the employer was not required to accommodate Mr.
Caron beyond what the Act provided. The CLP also decided that Mr. Caron’s right
to work under the Act had expired. The CLP therefore granted Mr. Caron no
remedy; it dismissed his appeal.
B.
Quebec Superior Court, 2014 QCCS 2580
[71]
Mr. Caron sought judicial review before the Superior Court. Dugré
J. held that the applicable standard of review was reasonableness. In his view,
the question was not one of jurisdiction, but rather whether the CLP made a
decision that reasonably balanced Quebec Charter values and the Act.
[72]
He found the CLP’s decision to be unreasonable. In his view, the
CLP confused the question of whether the employer fulfilled its duties under
the Quebec Charter, and the question of whether the Act complies
with the Quebec Charter. According to Dugré J., if the absence of
suitable employment results from a violation of a right protected by the Quebec
Charter — i.e. if the claimant has been discriminated against by reason of
his disability resulting from an employment injury — the CLP has the duty to
grant a remedy under s. 49 of the Quebec Charter.
[73]
Likewise, according to Dugré J., the CLP’s decision that Mr.
Caron’s right to return to work had expired was unreasonable. Having decided
that it could not rule on whether Mr. Caron had been the victim of
discrimination on the basis of his disability, the CLP did not make the proper
inquiry regarding whether s. 240 of the Act (which provides that the right to
return to work expires two years after the period of continuous absence of the
worker as a result of an employment injury) is rendered inoperative due to a
conflict with the Quebec Charter. Accordingly, Dugré J. held that the
CLP should rehear the matter to decide, first, whether Mr. Caron was a victim
of discrimination and, second, whether s. 240 of the Act is rendered
inoperative by s. 52 of the Quebec Charter. Dugré J. returned the
matter to the CLP to determine whether the employer had discharged its duty to
accommodate as required by the Quebec Charter.
C.
Quebec Court of Appeal, 2015 QCCA 1048
[74]
Bélanger J.A., with the concurrence of Hilton and Schrager JJ.A.,
came to a similar conclusion. The Court of Appeal did so applying the
correctness standard, on the basis that applying the Quebec Charter is a
question of law that is of central importance to the legal system and outside
the specialized area of expertise of the administrative decision maker (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 60).
[75]
The Court of Appeal held that the CLP had the authority to require
an employer to accommodate a disabled employee with respect to suitable
employment, as per the Quebec Charter. While the duty to accommodate under
the Quebec Charter and relief under the Act evolved in parallel,
this does not prevent the CLP from drawing on the Quebec Charter in
exercising its authority conferred by the Act. Its power to decide questions of
law authorizes it to grant the remedy sought by Mr. Caron. The duty to
accommodate stemming from the Quebec Charter and the Act may well
overlap.
[76]
Regarding the expiry of the right to return to work pursuant to
s. 240 of the Act, the Court of Appeal held that the duty to accommodate was
incompatible with a mechanical application of a clause which provides for the
termination of the employment relationship after a set period of time. The duty
to accommodate calls for an individualized assessment making the two-year
limit, at most, a factor to be considered, rather than being determinative. The
CLP must first decide whether Mr. Caron suffered discrimination based on his
disability. Once the circumstances of the case have been examined, then the CLP
will be able to make a determination on the two-year limit under s. 240. The
appeal against Dugré J.’s decision was dismissed and his order returning the
matter to the CLP was affirmed.
IV.
Relevant Provisions
[77]
The relevant provisions of the Quebec Charter
and Act are as follows:
Charter of human
rights and freedoms,
CQLR, c. C-12
10. Every person has a right to
full and equal recognition and exercise of his human rights and freedoms,
without distinction, exclusion or preference based on race, colour, sex, gender
identity or expression, pregnancy, sexual orientation, civil status, age except
as provided by law, religion, political convictions, language, ethnic or
national origin, social condition, a handicap or the use of any means to
palliate a handicap.
Discrimination exists where such a distinction, exclusion or
preference has the effect of nullifying or impairing such right
16. No one may practise
discrimination in respect of the hiring, apprenticeship, duration of the
probationary period, vocational training, promotion, transfer, displacement,
laying-off, suspension, dismissal or conditions of employment of a person or in
the establishment of categories or classes of employment.
49. Any unlawful interference with
any right or freedom recognized by this Charter entitles the victim to obtain
the cessation of such interference and compensation for the moral or material
prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal
may, in addition, condemn the person guilty of it to punitive damages.
52. No provision of any Act, even
subsequent to the Charter, may derogate from sections 1 to 38, except so far as
provided by those sections, unless such Act expressly states that it applies
despite the Charter
Act respecting industrial accidents and occupational diseases, CQLR, c. A-3.001
1. The object of this Act is to
provide compensation for employment injuries and the consequences they entail
for beneficiaries.
The process of compensation for employment injuries includes
provision of the necessary care for the consolidation of an injury, the
physical, social and vocational rehabilitation of a worker who has suffered an
injury, the payment of income replacement indemnities, compensation for bodily
injury and, as the case may be, death benefits.
This Act, within the limits laid down in Chapter VII, also
entitles a worker who has suffered an employment injury to return to work.
349. The Commission has exclusive
jurisdiction to examine and decide any question contemplated in this Act unless
a special provision gives the jurisdiction to another person or agency
377. The board has the power to
decide any question of law or fact necessary for the exercise of its
jurisdiction.
It may confirm, quash or amend a contested decision or order
and, if appropriate, make the decision or order that should, in its opinion,
have been made initially. [Now repealed. See the Act to establish the
Administrative Labour Tribunal, CQLR, c. T-15.1, at s. 9.]
378. The board and its commissioners
are vested with the powers and immunity of commissioners appointed under the
Act respecting public inquiry commissions (chapter C-37), except the power to
order imprisonment.
They are also vested with all the powers necessary for the
performance of their duties; they may, in particular, make any order they
consider appropriate to safeguard the rights of the parties.
No judicial proceedings may be brought against them by reason
of an act done in good faith in the performance of their duties. [Now repealed.
See the Act to establish the Administrative Labour Tribunal, at ss. 9
and 10.]
V.
Analysis
A.
Standard of Review
[78]
This Court has held that deference is owed to a
tribunal making a determination within its specialized jurisdiction even when
drawing on the Quebec Charter:
Deference is in order
where the Tribunal acts within its specialized area of expertise, interprets
the Quebec Charter and applies that charter’s provisions to the facts to
determine whether a complainant has been discriminated against
(Mouvement laïque québécois
v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46).
[79]
The CLP declined jurisdiction on the basis that
the Act was exhaustive of an employer’s duty to accommodate and that it
could not grant any remedies in addition to those provided for in the Act (CLP
decision, at para. 87). One could view this as a specialized tribunal
interpreting its home statute; in such an instance the deferential standard of
reasonableness would apply (Dunsmuir, at para. 54).
[80]
By contrast, in deciding that it could not grant
a remedy under the Quebec Charter, one could characterize the CLP’s
decision as one relating to the scope of its statutory grant of power, i.e. its
jurisdiction. Under that characterization, the decision would be reviewed on
the standard of correctness:
Administrative bodies must
also be correct in their determinations of true questions of jurisdiction or vires.
. . . [T]rue jurisdiction questions arise where the tribunal must explicitly
determine whether its statutory grant of power gives it the authority to decide
a particular matter.
(Dunsmuir, at
para. 59)
[81]
In the end, I am persuaded by the analysis set
out by the Quebec Court of Appeal:
[translation] The question in the instant case relates not to
the application of the Charter per se, but to a refusal to apply it.
What this question
informs is the obligation of a specialized tribunal in applying its enabling
legislation to take the Charter, a quasi-constitutional statute, into account.
In my view, the Quebec
legislature did not intend to protect the jurisdiction of a specialized
tribunal such as the CLP to decide whether to apply the Quebec Charter. That is
also a question of general law that is of importance to the legal system,
including the system of administrative justice. The applicable
standard is therefore correctness. [paras. 35-37
(CanLII)]
B.
The Purposes of the Act and the Quebec Charter
(1)
The Act
[82]
The Act is the current iteration of the
historic compromise between employers and employees regarding compensation for
work-related injuries through a no-fault scheme for victims of employment
injuries. This purpose is set out in the opening section of the Act:
1. The object of this Act is to
provide compensation for employment injuries and the consequences they entail
for beneficiaries.
The process of compensation for employment injuries includes
provision of the necessary care for the consolidation of an injury, the
physical, social and vocational rehabilitation of a worker who has suffered an
injury, the payment of income replacement indemnities, compensation for bodily
injury and, as the case may be, death benefits.
This Act, within the limits laid down in Chapter VII, also
entitles a worker who has suffered an employment injury to return to work.
[83]
This Court has commented on the compensatory
nature of the Act:
The evolution and
characteristics of this normative scheme show that it is largely independent
from the general law. It expresses a well thought-out social compromise between
various contradictory forces. . . . It establishes a compensation system that
is based on the principles of insurance and no-fault collective liability, the
main purpose of which is compensation and thus a form of final liquidation of
remedies.
(Béliveau St-Jacques,
at para. 114)
[84]
The right to return to work and the right to
rehabilitation under the Act are relatively recent additions (see S.Q. 1985, c.
6) to Quebec’s compensation scheme. As explained by the Court of Appeal, the
Act itself does not impose a duty to accommodate on the employer;
rather, under s. 170 of the Act, the CSST only asks the employer if he
has suitable employment available (C.A. reasons, at para. 62). By
contrast, the Quebec Charter does impose a duty to accommodate on the
employer.
(2)
The Quebec Charter
[85]
The overarching goal of the Quebec Charter,
as stated in its preamble, is the recognition and protection of
fundamental rights and freedoms:
. . .
Whereas it is expedient to
solemnly declare the fundamental human rights and freedoms in a Charter, so
that they may be guaranteed by the collective will and better protected against
any violation;
[86]
The Quebec Charter protects the right to
equality and its corollary, the prohibition against discrimination. Section 10
of the Quebec Charter does this in the following terms:
10. Every person has a right to full and equal recognition and exercise
of his human rights and freedoms, without distinction, exclusion or preference
based on race, colour, sex, gender identity or expression, pregnancy, sexual
orientation, civil status, age except as provided by law, religion, political
convictions, language, ethnic or national origin, social condition, a handicap
or the use of any means to palliate a handicap.
Discrimination exists
where such a distinction, exclusion or preference has the effect of nullifying
or impairing such right.
[87]
Section 10 of the Quebec Charter,
however, does not operate in isolation. Rather, its protections operate in
conjunction with other protected rights: “. . . the right to non-discrimination
cannot serve as a basis for an application on its own and . . . it must
necessarily be attached to another human right or freedom recognized by law” (Quebec
(Commission des droits de la personne et des droits de la jeunesse) v.
Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39,
[2015] 2 S.C.R. 789, at para. 54). In the employment context, such rights are
set out in ss. 16 to 20 of the Quebec Charter. Thus, the duty to
accommodate in the employment context is derived from ss. 10 and 16 of the
Quebec Charter operating together.
[88]
The duty to accommodate was recognized by this
Court in 1985 (a few months after the Act was enacted) (Ontario Human Rights
Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536). It requires
accommodation by employers to the point of undue hardship. Deschamps J., for a
unanimous Court, summarized the duty:
. . . the duty to
accommodate implies that the employer must be flexible in applying its standard
if such flexibility enables the employee in question to work and does not cause
the employer undue hardship. . . .
. . . the goal of
accommodation is to ensure that an employee who is able to work can do so. . .
. The purpose of the duty to accommodate is to ensure that persons who are
otherwise fit to work are not unfairly excluded where working conditions can be
adjusted without undue hardship.
(Hydro-Québec v. Syndicat
des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec,
section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, at paras.
13-14)
[89]
Section 52 of the Quebec Charter provides
that, save where legislation expressly states the contrary, no provision of any
Act may infringe the rights protected in ss. 1 to 38 of the Quebec Charter.
Thus, these sections of the Quebec Charter have primacy over other
enactments, in the absence of express derogation. Where a provision infringes
these sections of the Quebec Charter, the provision is inoperative,
subject to justification under s. 9.1 in the case of the rights protected under
ss. 1 to 9 (Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at
pp. 769-71; see also Chaoulli v. Quebec (Attorney General), 2005
SCC 35, [2005] 1 S.C.R. 791).
[90]
Where there is infringement of a right, either
by state action or by a private party, s. 49 of the Quebec Charter
provides the claimant with various remedies. First, the claimant may be awarded
compensatory damages. Second, the claimant may be awarded punitive damages, in
the case of unlawful and intentional interference with the claimant’s rights.
Third, the claimant may be granted an order for the cessation of the
interference with his or her rights. In such a case, the law of civil liberties
can go beyond the law of civil liability. As stated by LeBel J.:
It is sometimes necessary to
put an end to actions or change practices or procedures that are incompatible
with the Quebec Charter even where there is no fault within the meaning
of the law of civil liability. . . . Thus, in the context of seeking
appropriate recourse before an administrative body or a court of competent
jurisdiction, the enforcement of [the law of civil liberties] can lead to the
imposition of affirmative or negative obligations designed to correct or bring
an end to situations that are incompatible with the Quebec Charter.
(Communauté urbaine de
Montréal, at para. 26)
In this case, the remedy
that is sought falls under this category; Mr. Caron is seeking a reasonable
accommodation by Centre Miriam, an affirmative obligation intended to correct a
situation incompatible with the Quebec Charter.
(3)
Conclusion on the Purposes of the Act and the
Quebec Charter
[91]
The Act and the Quebec Charter have
different purposes. The Act is a compensatory, no-fault scheme for employment
injuries. The Quebec Charter has the wider goal of safeguarding fundamental
rights, including the right to equality. This includes the duty to accommodate.
By contrast, the rights to compensation and to return to work after an
employment accident arise from the Act. The two legal schemes are distinct
conceptually. Nonetheless, they can intersect in practice.
[92]
Inflexibility, short of undue hardship, in the
application of an employer’s employment standards is a failure to accommodate
and, consequently, a discriminatory practice. Unlike the Act, the origin
of the disability does not matter for the Quebec Charter; while it need
not be a workplace accident, it includes disability arising from such an
accident. A failure by the employer to reasonably accommodate its disabled
employee is discriminatory as it constitutes a violation of the disabled
employee’s right to equality. Such victims of discrimination are entitled under
s. 49 of the Quebec Charter to an order requiring an employer to
accommodate them.
[93]
The CLP’s statement to the effect that the Act
constitutes the full extent of an employer’s duty to accommodate was
incorrect in that the CLP had the authority and the duty to give effect to Mr.
Caron’s Quebec Charter rights, as well as to his rights under the Act.
Put simply, Mr. Caron’s Quebec Charter rights exist in addition
to his statutory rights under the Act.
C.
Jurisdiction to Grant Remedies Under the Quebec
Charter
(1)
The Conway Test
[94]
In R. v. Conway, 2010 SCC 22, [2010] 1
S.C.R. 765, this Court dealt with whether an administrative tribunal has
jurisdiction to grant various remedies under s. 24(1) of the Canadian
Charter . The inquiry is twofold. The first question is institutional: Does
the tribunal have jurisdiction to grant Charter remedies? If the
tribunal has the power to decide questions of law, the answer to this question
is “yes”. The second question is specific to the remedy sought: Can the
tribunal grant the remedy having regard to its statutory mandate? This question
concerns legislative intent.
[95]
Certain indicia assist in answering this second
question. For instance, prompt and efficient resolution in one tribunal of all
matters whose essential character falls within its specialized statutory
jurisdiction favours recognizing jurisdiction to grant the remedy sought:
Citizens are permitted to
assert their Charter rights in a prompt, inexpensive, informal way. The
parties are not required to duplicate submissions on the case in two different
fora, for determination of two different legal issues. A specialized tribunal
can quickly sift the facts and compile a record for the reviewing court.
(Weber v. Ontario Hydro,
[1995] 2 S.C.R. 929, at para. 60)
This facilitates
vindication of Canadian Charter rights and seeks to avoid the burden and
inefficiency of multiple venues; it is better to determine the matter before
one administrative tribunal.
[96]
Likewise, when Canadian Charter rights
are at risk of being infringed, a tribunal will be empowered to rule on
incidental Charter questions, unless this jurisdiction is expressly
excluded:
. . . where a legislature
confers on a court or tribunal a function that involves the determination of
matters where Charter rights may be affected, and furnishes it with
processes and powers capable of fairly and justly resolving those incidental Charter
issues, then it must be inferred, in the absence of a contrary intention,
that the legislature intended to empower the tribunal to apply the Charter.
(R. v. 974649 Ontario Inc.,
2001 SCC 81, [2001] 3 S.C.R. 575 (“Dunedin”) at para. 75)
[97]
In contrast with s. 24(1) of the Canadian
Charter , s. 49 of the Quebec Charter is mute on the topic of
competent tribunal. The absence of an express limitation, however, does not
mean that there is no implicit limitation; not all tribunals are competent to
grant remedies under the Quebec Charter. Professors Brun, Tremblay and
Brouillet are of this view:
[translation] Section 49 is silent on
this subject. Accordingly, it follows that for a tribunal to be competent to
rule on a claim under section 49, it must be one that has authority under the
ordinary law to grant the remedy sought.
(H. Brun, G. Tremblay and E.
Brouillet, Droit constitutionnel (6th ed. 2014), at p. 1082)
[98]
While the Conway framework was set out in
the context of the Canadian Charter , I see no reason why the underlying
rationale for the framework should not also apply to the Quebec Charter.
The similarities between the two instruments have led to significant “cross
pollination” in the jurisprudence. Of note, this Court has applied the
framework for analysis under s. 1 of the Canadian Charter as set out in R.
v. Oakes, [1986] 1 S.C.R. 103, to s. 9.1 of the Quebec Charter.
This recognizes the similar justificatory purpose of s. 9.1 of the Quebec
Charter and s. 1 of the Canadian Charter , notwithstanding
differences in the text of the two provisions (Ford, at pp.
769-71; Chaouilli, at paras. 46-48, per Deschamps J.). Conversely, the
analytical framework for determining infringements of a person’s freedom of
religion initially devised in Syndicat Northcrest v. Amselem, 2004
SCC 47, [2004] 2 S.C.R. 551, a case regarding s. 3 of the Quebec Charter,
has helped frame subsequent jurisprudence regarding s. 2(a) of the
Canadian Charter (Saskatchewan (Human Rights Commission) v. Whatcott,
2013 SCC 11, [2013] 1 S.C.R. 467; Ktunaxa Nation v. British Columbia
(Forests, Lands and Natural Resource Operations), 2017 SCC 54). The similar
nature of s. 24(1) of the Canadian Charter and of s. 49 of the Quebec
Charter favours a parallel analytical framework for determining whether an
administrative tribunal can grant a remedy under either Charter.
[99]
This is not novel. The Quebec Court of Appeal
has applied the Conway framework, mutatis mutandis, when
determining whether the Commission des relations du travail (now also part of
the ALT) had jurisdiction to grant a remedy under the Canadian and Quebec
Charters (Association des cadres de la Société des casinos du Québec v.
Société des casinos du Québec, 2014 QCCA 603, at paras. 10 and 31
(CanLII)). Further, prior to this Court’s ruling in Conway, the Quebec
Court of Appeal stated that, given their similar nature, it followed that a
grievance arbitrator, being a court of competent jurisdiction under s. 24(1) of
the Canadian Charter , would also be a court of competent jurisdiction
under s. 49 of the Quebec Charter (Université de Montréal v. Québec (Commission
des droits de la personne et des droits de la jeunesse), 2006 QCCA
508, at para. 55 (CanLII)).
[100]
Nonetheless, the Quebec Charter and the
Canadian Charter are distinct instruments; as such, they may need to be
approached in different ways in various circumstances. The use of the Conway
framework in this case in no way precludes or detracts from the possibility
that distinct approaches may be warranted, depending on the context.
(2)
The CSST (Now the CNESST)
[101]
I would recall that the decision under review is
that of the CLP and not the initial decision of the CSST; an appeal to the CLP
is de novo (Moulin de préparation de bois en transit de St-Romuald v.
Commission d’appel en matière de lésions professionnelles, [1998]
C.A.L.P. 574 (Que. C.A.)).
[102]
The first part of the Conway inquiry
involves a determination as to whether the tribunal has the authority to decide
questions of law. Within the Quebec administrative framework, the CSST (now the
CNESST) exercises “administrative functions” within the meaning of the Act
respecting administrative justice, CQLR, c. J-3, rather than
“adjudicative” or quasi-judicial functions. While administrative functions are
subject to certain procedural safeguards, they are qualitatively different from
adjudicative functions. Notably, adjudicative bodies function in an adversarial
setting, presided over by an administrative judge, while administrative bodies
give operational effect to legislative schemes in a bureaucratic setting.
[103]
The statutory grant of powers to the CSST (now
the CNESST) in the Act confers exclusive jurisdiction over questions relating
to the Act:
349. The Commission has
exclusive jurisdiction to examine and decide any question contemplated in this
Act unless a special provision gives the jurisdiction to another person or
agency.
The power to decide
questions of law generally is not provided for. The administrative, rather than
adjudicative, nature of the CSST (now the CNESST) means that it is not a forum
to adjudicate issues relating to Quebec Charter rights.
(3)
The CLP (Now the ALT)
[104]
By contrast, the CLP expressly had the power to
decide questions of law:
377. The board has the power to decide any question of law or fact necessary
for the exercise of its jurisdiction. [Now repealed, see the Act to
establish the Administrative Labour Tribunal, CQLR, c. T-15.1, at s. 9].
Its successor, the ALT,
has similar jurisdiction pursuant to s. 9 of the Act to establish the
Administrative Labour Tribunal. This Court has recognized the jurisdiction
of the Administrative Tribunal of Québec to rule on constitutional questions
incidental to the exercise of its jurisdiction based on a grant of authority
set out in the same words as quoted above (Okwuobi v. Lester B. Pearson
School Board, 2005 SCC 16, [2005] 1 S.C.R. 257). The answer to the first
question under the Conway analysis is therefore “yes”: the CLP (now the
ALT) had jurisdiction to grant remedies under the Quebec Charter in
relation to issues that arose in carrying out its statutory mandate.
[105]
The second leg of the Conway framework
asks whether the specific remedy sought fits the tribunal’s statutory
framework. The remedy sought in this case is an order that would require Centre
Miriam to accommodate Mr. Caron when determining whether it has suitable
employment (CLP decision, at para. 14). In my view, the CLP had (and the ALT
now has) authority to grant this remedy. Whether granting such a remedy is
warranted in the circumstances is another matter, one yet to be determined.
[106]
The general considerations noted above in Weber
and Dunedin are applicable to this case. The CLP was a sophisticated
quasi-judicial tribunal that allowed for thorough exploration of issues through
an adversarial process. There was no language in the Act that excluded the
power to grant remedies under the Quebec Charter. As well, it is
clearly undesirable that Mr. Caron be forced to go first to another forum to
obtain a ruling on the Quebec Charter issue and only then appeal to the
CLP to obtain a final determination with regard to accommodation.
[107]
The CLP was given broad powers to carry out its
statutory mandate. As the CLP heard appeals de novo pursuant to s. 377
of the Act, it was not bound by findings of the CSST; rather it could freshly
consider facts and issues relevant to the matter before it. The CLP was vested
with the powers necessary to the performance of its duties and could make
suitable orders to safeguard the rights of parties (s. 378 of the Act). The
type of remedy sought here fell within the powers granted to the CLP and now
the ALT (see s. 9 of the Act to establish the Administrative Labour Tribunal).
[108]
I would respectfully disagree with my
colleague’s statement that the effect of s. 438 of the Act is that “there is no
other recourse for an injured worker” (reasons of Abella J., at para. 18).
Finding that the CLP had authority to make an order requiring a reasonable
accommodation does not conflict with this provision. This Court has held that
this section “applies to an action for damages under the [Quebec] Charter based
on the events that gave rise to the employment injury” (Béliveau St-Jacques,
at para. 130). This prohibition is inapplicable here since the remedy
sought by Mr. Caron under s. 49 of the Quebec Charter is not grounded in
civil liability (Communauté urbaine de Montréal, at para. 26) and is not
“by reason of his employment injury” under s. 438 of the Act.
[109]
Therefore, in stating that it could not grant a
remedy under the Quebec Charter, the CLP erred in determining that its
statutory grant of power did not give it authority to decide this matter. This
decision was incorrect.
(4)
Jurisdiction of the Grievance Arbitrator
[110]
The Quebec Court of Appeal dealt also with the
jurisdictional interplay between grievance arbitrators, on the one hand, and
the CSST and the CLP, on the other hand, when a collective agreement provides
greater benefits than those contained in the Act (Université McGill v.
McGill University Non Academic Certified Association (MUNACA), 2015 QCCA
1943). This issue does not arise in this case. I would note only that
substantive rights and obligations under the Quebec Charter are
incorporated into collective agreements concerning which an arbitrator has
jurisdiction (Parry Sound (District) Social Services Administration Board v.
O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, at para.
23).
VI.
The Duty to Accommodate
[111]
The duty to accommodate in situations such as
this does not require an employer to create a new position from scratch for a disabled
employee. This would not be a reasonable accommodation. Rather, it means
that when an employer is looking at available positions, the employer is
required to consider whether it has any suitable employment under s. 170 of the
Act, for instance, and also what its obligations under the Quebec
Charter require with respect to flexibility in work standards. If what
stands in the way of a position being suitable is a reasonable accommodation
(to the point of undue hardship), then the employer is required by the Quebec Charter
to take the steps needed to accommodate the disabled employee. Where the
employer fails to do so, the CLP has authority to make an appropriate order.
[112]
One can understand the frustration of employees
who would have to seek a decision by the CSST, have it reviewed within that
organization and then appeal the matter to the CLP where, after a hearing de
novo, an order requiring an accommodation may be made. I would offer a few
remarks. First, the fact that the CSST cannot compel an employer to accommodate
an employee does not mean that the CSST cannot discuss with the employer its
duty to accommodate. Indeed, one would hope that the CSST would assist
employers to understand not only the rights of workers under the Act, but also
those under the Quebec Charter.
[113]
Second, the duty to accommodate does not come
into existence once the matter is before the CLP. Rather, the duty to
accommodate exists by virtue of the Quebec Charter; the CLP
adjudicates the application of the duty where there is a dispute between an
employer and a disabled employee. Good faith by the employer in the realization
of its obligations should mean that the CLP’s involvement will be the exception
and not the rule.
[114]
Finally, the difference in the jurisdiction of
the CSST and the CLP reflects the different roles assigned to each by the Act.
The fact that the CLP has a power to decide any question of law and the CSST
does not have such power has consequences for what each can do. Adjudicating
issues relating to the Quebec Charter is a function for which the CLP is
equipped; this differs from the role of expeditious administrative decision
maker carried out by the CSST. The National Assembly can revisit this
attribution of authority in the future if it so chooses.
VII.
Conclusion
[115]
Like my colleague, I would dismiss the appeal
with costs and return the matter to the ALT for a determination of whether the
duty to accommodate has been satisfied in Mr. Caron’s case, and if not, whether
the time limit precludes any remedy in the circumstances.
Appeal dismissed
with costs.
Solicitors for the appellant: Paquet
Tellier, Saint‑Jérôme.
Solicitors for the respondent: Poudrier
Bradet, Québec.
Solicitor for the
intervener the Attorney General of Quebec: Attorney General of Quebec,
Québec.
Solicitors for the intervener the Administrative
Labour Tribunal (formerly known as Commission des lésions professionnelles): Verge
Bernier, Québec.
Solicitors for the intervener Miriam
Home and Services: Monette Barakett, Montréal.
Solicitors for the intervener Conseil du patronat du Québec inc.: Loranger
Marcoux, Montréal.
Solicitor for the interveners the Ontario Network of Injured Workers’
Groups and the Industrial Accident Victims’ Group of Ontario: IAVGO
Community Legal Clinic, Toronto.
Solicitors for the intervener Centrale des syndicats du Québec: Barabé
Casavant, Montréal.
Solicitor for the intervener the Canadian Union of Public Employees: Canadian
Union of Public Employees, Montréal.