Obligation to Accommodate and the Act Respecting Industrial Accidents and Occupational Diseases: the CSST and the CLP Now Have to Take Them Into Account
This past June 15, in the matter of Commission de la santé et de la sécurité au travail v. Caron1, the Quebec Court of Appeal rendered a precedent-setting decision regarding the obligation of Quebec’s workers’ health and safety commission (the Commission de la santé et de la sécurité du travail, or CSST) and Quebec’s work-related injuries commission (the Commission des lésions professionnelles, or CLP) to examine, in a right-to-return-to-work situation, whether or not the employer has complied with its obligation of reasonable accommodation.
The facts are fairly straightforward: an educational instructor at a drop-in centre sustained a work-related injury, namely epicondylitis in the left elbow (“tennis elbow”). The injury resulted in functional limitations that prevented him from continuing to work as an educational instructor. In accordance with the procedure mandated by the Act respecting Industrial Accidents and Occupational Diseases, (the “IAOD”) the employer indicated that no other position was available that was compatible with the employee’s functional limitations, i.e. “suitable employment” as defined in the IAOD. The employer thus terminated his employment. The employee was provided with the rehabilitation services provided for in the IAOD so that the CSST could find him another employment opportunity on the labour market.
The employee considered however that there were two other positions with the employer that were suitable for him, provided certain adaptations were made. He thus turned to the CLP, submitting that the employer’s internal job-identification process should be repealed so as to ensure compliance with Quebec’s Charter of Human Rights and Freedoms (the “Charter”) and to ensure that the employer had fulfilled its obligation to accommodate him pursuant thereto.
The CLP rejected the employee’s argument and confirmed well-established case law to the effect that respecting the provisions of the IAOD constituted reasonable accommodation in and of itself and that the employer had no other legal obligation beyond that2. The CLP concluded that the employer did not have the obligation to offer the employee a position accommodating his functional limitations and that his rehabilitation process should continue elsewhere on the labour market.
The matter was then taken before Quebec Superior Court on judicial review3. The Court was of the view that the CLP should have determined if the employee was the victim of unlawful interference with a right protected by the Charter and if so, that it should have exercised its broad remedial powers under sections 49 and 52. The Court accordingly annulled the CLP’s decision and sent the matter back to it for a decision on the employee’s complaint that took into account his right to equality under the Charter.
The CSST appealed that decision to the Quebec Court of Appeal. The latter was of the view that an employee living with the after-effects of a work-related accident can be considered handicapped. Consequently the employee is protected by the Charter and is entitled to be accommodated so as to remain employed, as the employer’s duty to accommodate transcends statutory law, the employment contract and even the collective agreement. The Court stated that the duty to accommodate is first and foremost incumbent on the employer, who must take the initiative in finding a solution that is acceptable for all concerned4. While the IAOD imposes no obligation on the employer to offer suitable employment to an employee who has sustained a work-related injury, the Court of Appeal took the view that the supra-legislative nature of the Charter imposes on the employer the obligation to attempt to find an accommodation measure and that the CSST is obliged to determine whether the employer performed that exercise.
Consequently, unless the employer is able to show that accommodating the employee under the circumstances would cause it undue hardship, it must: (1) perform an analysis in order to identify all possible accommodations, and (2) offer the employee a position compatible with the latter’s limitations, as it would do for an employee with a handicap.
With respect to the time limit provided for in the IAOD for exercising the right to return to work, i.e. one year or two years, as the case may be, the Court expressed the view that this time limit was one of the factors to be taken into consideration but not a determining one.
This decision will have a major impact on employers, who seemingly now have the burden to prove to the CSST or the CLP, or both, that an individualized analysis of all possible accommodations was performed for a handicapped employee.
The decision will also result in a substantial change in the CSST’s practices, and it will be interesting to see how case law develops in its wake. Employers will most assuredly have to change their practices as well, by implementing revised policies in this regard and, where necessary, seeking legal advice on how to deal with such files.
1 2015 QCCA 1048 (CanLII)
2 2012 QCCLP 3625 (CanLII)
3 2014 QCCS 2580 (CanLII)
4 Supra, note 1, par. 65