In a decision1 handed down on February 1, 2018, the Supreme Court of Canada confirmed a Quebec Court of Appeal decision according to which the Act respecting industrial accidents and occupational diseases (AIAOD) must be interpreted and applied in accordance with the provisions of the Charter of Human Rights and Freedoms, (Charter) and, in particular, in accordance with the duty to accommodate.
In doing so, the Supreme Court puts a definitive end to the majority view of the Administrative Labour Tribunal (the Tribunal) that prevailed until then, which was to the effect that the provisions of the AIAOD constitute an accommodation in themselves and that the employer is not required to accommodate an employee victim of an employment injury outside the framework established by the law.
This is a significant reversal of a strong tendency within the Tribunal, and employers will therefore no longer be able to claim, for example, that an employee cannot return to the position he or she had prior to the injury or even that there is no suitable employment from the sole fact that certain adjustments must be made to a position to adapt it to the worker’s functional limitations: an exercise to accommodate must be performed to guarantee the worker’s right to equality as provided by the Charter, unless it causes undue hardship.
Mr. Alain Caron, a special educator who had been employed by Centre Miriam for more than 25 years, developed lateral epicondylitis after hitting his elbow. As a result, his employer reassigned him to a temporary position that he could fulfill despite his work injury. At the end of this temporary assignment, around three years later, the employer indicated to the Commission de la santé et de la sécurité du travail (now the CNESST) that due to Mr. Caron’s permanent functional limitations and the expiry of the time limit stipulated for the right to return to work, Mr. Caron could no longer be reinstated in the job he held prior to the injury and indicated that it had otherwise no suitable employment for him.
Mr. Caron challenged that decision, alleging in particular that the issue of his reinstatement must be analyzed in light of the duty to accommodate under the Charter. More specifically, the worker claimed that the employer must, to meet its human rights obligations, consider the possibility of adjusting one of the available positions in order to accommodate his functional limitations.
Endorsing the prevailing majority view, the Commission des lésions professionnelles (the CLP, now the Tribunal) rejected the worker’s claims and concluded that [translation]: "Neither the CSST nor the Commission des lésions professionnelles have the power to impose upon the employer any other remedial measures, such as reasonable accommodation, the provisions mentioned in the Act respecting industrial accidents and occupational diseases constituting such accommodation under the Quebec Charter."2
Considering in particular the quasi-constitutional aspect of the Charter, the Superior Court granted the application for judicial review3.
Sharing the same views, the Court of Appeal confirmed the decision of the Superior Court, concluding that [translation]: "The right to return to work of the worker who is victim of an employment injury and remaining disabled requires the employer to carry out the duty to accommodate the employee under the supra-legislative provisions, as interpreted by the courts."4 In other words, the terms specified in the AIAOD are not sufficient in themselves and the employer, in such a case, must demonstrate greater flexibility and accommodate the employee.
Decision of the Supreme Court
In a majority decision, the Supreme Court confirmed the decisions handed down by the Superior Court and the Court of Appeal. For the Supreme Court, a disability resulting from a disease or personal accident cannot be distinguished from one resulting from an employment injury within the meaning of the AIAOD: in all cases, the duty to accommodate under the Charter applies.
If the AIAOD, in its protective essence, seeks to establish specific rules intending to compensate workers who are victims of industrial accidents or occupational diseases, it remains that this legislation must be interpreted and applied in accordance with the Charter.
In that regard, the court notes that [translation]: "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."
The court furthermore specifies that the duty to accommodate does not overly disrupt the regime established by the AIAOD, but merely requires a "more robust approach" to the implementation of the rights of workers who are victims of employment injuries by the CNESST, the Tribunal and, clearly, the employer. In other words, the terms of the existing regime are maintained, but the parties involved are invited to show flexibility in order to guarantee both compliance with the rights provided by the AIAOD and the right to equality provided by the Charter. As a result, the power of the CNESST and the Tribunal to impose upon the employer reasonable accommodation measures regarding the return to work is confirmed.
With respect to the time limit stipulated by the AIAOD within which the right to return to work may be exercised, the Supreme Court invites the Tribunal to decide if this time limit must apply in all cases, considering the amended approach imposed in the decision and the relevant circumstances.
With this decision highly anticipated in Quebec, the Supreme Court puts an end to an important jurisprudential debate. It remains to be seen how the CNESST will integrate these accommodation principles into the existing approach on how to handle employment injury matters, while the organization itself argued that the mechanisms in place in the AIAOD provided by themselves the required accommodation.
This decision will clearly change the approach recommended until now by the CNESST and the Tribunal concerning the return to work. Over time, the Tribunal’s jurisprudence will inform us on the scope of the duty to accommodate in such a context. We will keep you apprised of developments in this area.
In the near term, the effects of this decision should be felt particularly with respect to workers’ employment reinstatement. A certain flexibility will now be required as part of the approach of reinstating a worker in his or her pre-injury employment into the position held prior to the injury, into an equivalent employment or into a suitable employment. The employer who disagrees with the recommended solution must now prove undue hardship. It is also safe to say that the CNESST and the Tribunal will show flexibility with respect to the time limit that applies to the right to return to work, as the Supreme Court suggests indirectly at the very end of its decision.
One thing is certain, the CNESST must now exercise caution before concluding that an employee is incapable of being reinstated in his or her pre-injury employment or an equivalent one. In addition, the CNESST must exercise caution before concluding that there is no suitable employment simply because the sought-after positions would require certain adjustments in order to respect the worker’s functional limitations. In all cases, the importance of the required adjustments must be considered: if the jurisprudence recognizes that an employer does not have to create an entirely new position, the modification of certain tasks, subject to undue hardship, has often been considered as a reasonable accommodation.
We therefore invite employers to step up their efforts in documenting files and meticulously analyzing the operational needs/constraints. Indeed, disputes in this area could very likely become more complex, and detailed evidence will be required.
In all circumstances, employers will only benefit from adopting a simple and streamlined method or process to analyze the accommodation required by a medical condition, whether the disability is the result of a personal injury or an employment injury.
1 Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3.
2 Caron and Centre Miriam, 2012 QCCLP 3625, para 87.
3 Caron v. Commission des lésions professionnelles, 2014 QCCS 2580, para 103.
4 Commission de la santé et de la sécurité au travail v. Caron, 2015 QCCA 1048, para 87.