Caron: The Supreme Court Reiterates the Employer’s Duty to Accommodate
On February 1, 2018, the Supreme Court of Canada released a much anticipated labour law decision pertaining to the employers’ duty of reasonable accommodation when an employee suffers an employment injury. In CNESST v. Caron, 2018 SCC 3, the Supreme Court of Canada upheld the decision of the Quebec Court of Appeal, reiterated that an employer has a duty to accommodate a worker who has suffered an employment injury, and confirmed that the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”) and the Administrative Labour Tribunal (the “ALT”) have a duty to determine whether a worker has been validly accommodated by the employer.
This decision will definitely have a significant impact on the rehabilitation process and on determination by the principal actors, the CNESST and the ALT, of what constitutes suitable employment.
In 2004, the worker developed epicondylitis while working as an educator in a residential facility. The employment injury had consolidated by 2006, leaving permanent impairment and functional limitations that prevented him from resuming his pre-injury employment.
It is important to note that throughout that period, the worker held the position of team leader, with light duties.
In 2010, as part of the rehabilitation process provided for in the Act respecting industrial accidents and occupational diseases (the “IAODA” or the “Act”) and the determination of the worker’s ability to return to work, the employer informed the Commission de la santé et de la sécurité du travail (the “CSST”, now replaced by the CNESST) that no suitable employment was available for the worker and terminated his employment. The CSST therefore informed the worker that the rehabilitation process would proceed, but his vocational potential would be evaluated elsewhere in the labour market.
The worker contested the CSST’s decision, alleging that the employer had not met the duty of reasonable accommodation imposed on it by the Charter of Human Rights and Freedoms (the “Charter”). Because of his employment injury, the worker, who had a disability, argued that the employer was required to make every effort to promote his return to work, but without imposing undue hardship on the employer.
II. Judicial History
A. Commission des lésions professionnelles
In 2012, the Commission des lésions professionnelles (the “CLP”) rejected the worker’s arguments. It was of the opinion that the consistent decisions of the Court of Appeal ruled out the application of the duty of reasonable accommodation provided in the Charter in rehabilitation cases under the IAODA. The CLP concluded that the provisions of the Act themselves constituted reasonable accommodation. The employer therefore did not have a duty to offer the worker suitable employment and the rehabilitation process could proceed elsewhere in the labour market.
B. Superior Court
In 2014, the Superior Court heard the matter on an application for judicial review and concluded that the CLP had failed to determine whether the worker had been a victim of unlawful discrimination on the basis of his disability, and whether the employer had fulfilled its duty of accommodation before declaring that there was no suitable employment in its enterprise. The Superior Court set aside the CLP’s decision and returned the matter to it for it to determine the worker’s challenge of the decision, taking into account the right to equality protected by the Charter.
The CSST appealed the decision.
C. Court of Appeal
In 2015, the Court of Appeal pointed out that the right of a worker who has a disability and the employer’s duty to accommodate transcend the Act, the employment contract and the collective agreement. A worker who still suffers the effects of an employment injury must be considered to have a handicap within the meaning of the Charter. The worker will therefore be protected against any form of discrimination and may be given the benefit of accommodation by the employer in order to retain his or her employment. Moreover, the Court reiterated that it is up to the employer to take the initiative of seeking a solution that is acceptable to everyone.
In the opinion of the Court of Appeal, even if the IAODA does not explicitly impose a duty on the employer to find suitable employment in its enterprise, the employer must try to find a reasonable accommodation measure. The duty to participate in the worker’s rehabilitation effort requires that every employer analyze the possible accommodations and offer a position that is consistent with a worker’s functional limitations. The Charter’s supralegislative character not only imposes that obligation on the employer, but also requires the CSST and the CLP to determine whether that process was properly followed.
On the question of the time allowed for exercising the right to return to work, the Court of Appeal was of the opinion that the CLP must conduct an individualized assessment of the worker’s situation. Under the Charter, the two-year limit provided in the IAODA is a factor to be considered but is not determinative.
The appeal was dismissed, but the CSST obtained leave to appeal to the Supreme Court.
D. Supreme Court of Canada
The Supreme Court of Canada dismissed the appeal by the CSST. The Court reiterated that the duty of reasonable accommodation applies to a worker who has suffered an employment injury, notwithstanding the fact that the IAODA does not expressly address the duty to accommodate.
The Court first noted that all Quebec legislation, including the IAODA, should be interpreted in conformity with the Charter: “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 compensation scheme for injured workers provides for various types of accommodation, such as reinstatement, equivalent employment, or, where that is not feasible, the most suitable employment. The IAODA therefore already proposes a form of accommodation for the worker’s benefit, without necessarily expressly providing the duty to accommodate within the meaning of the Charter.
The Supreme Court has now confirmed that this duty to accommodate is implicit, stating: “The fact that the scheme sets out some type of accommodation does not negate the broader, general accommodation required by the Quebec Charter.”
In those circumstances, the Court reiterated that the ALT has exclusive remedial authority in dealing with the right to reinstatement, equivalent employment or suitable employment, to impose measures on the employer to reasonably accommodate the injured worker and the circumstances that flow from the injury.
Accordingly, the matter was returned to the ALT for it to determine Mr. Caron’s challenge of the decision, taking into account the employer’s duty to take reasonable accommodation measures in accordance with the Charter.
It is also worth noting that Justice Rowe, who wrote separate reasons, was of the opinion that because the CNESST is an administrative rather than adjudicative body, it cannot compel an employer to accommodate an employee. Only the ALT has the power to order that. However, he pointed out that this does not mean that the CNESST cannot discuss with the employer its duty to accommodate, and that “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.”
In light of this decision, we find that the obligations imposed on employers to employees who have suffered an employment injury and who still suffer its effects will now be more onerous.
Based on the analysis done by the higher courts, we would advise that employers will now have to establish to the CNESST, and ultimately the ALT, that a serious analysis of possible accommodation measures was in fact done. Employers will very certainly have to provide objective justification for their decisions when those decisions assert that workers can be offered no employment.
We take this opportunity to remind that the employer’s obligations in respect of accommodation are continuing to be expanded, and, once again, the Supreme Court of Canada has affirmed that trend.
The authors wish to thank Francine Legault and Raphaëlle Alimi-Lacroix for their contributions to this article.