In Dionne c. Commission scolaire des Patriotes, 2012 QCCA 609 (CanLII) the Quebec Court of
Appeal rejected a motion for leave to appeal of a case where it was
decided that an occasional substitute teacher could not benefit
from articles 40 and 41 of the Act respecting Occupational
health and safety ("Act"), which
allow the re-assignment of a pregnant worker, failure which she can
cease working and receive indemnities from the Commission de la
santé et de la sécurité du travail
In this case, the appellant was registered on the Commission
Scolaire des Patriotes
("Commission") list of occasional
substitute teachers when she learnt about her pregnancy. She
informed the Commission that she had obtained two certificates
attesting that her working conditions could represent a risk for
her baby and herself. Following such information, on ten occasions
during her pregnancy, she received offers to work as a substitute
teacher. On each of these occasions, she accepted the offer but
immediately claims that she cannot work due to her protective
reassignment. The Commision sur les lésions
professionnelles ("CLP"), whose
decision was later upheld by the Superior Court, had ultimately
concluded that she was not a worker as per the definition of the
The Court of Appeal dismissed the appellant's leave for
appeal on the basis that the conclusions established by the
Commision sur les lésions professionnelles
("CLP") fall within a range of possible,
acceptable outcomes which can be justified with respect to the
facts and law at issue as prescribed by the Supreme Court of Canada
in Dunsmuir. Having revised a decision given by the CSST,
the CLP had concluded that the appellant could not be defined as a
worker when she exercised her re-assignment right and therefore was
not eligible to the re-assignment program. Indeed, the
applicant's employment contract exists only during the period
of the substitution (and not during the periods in between each
substitution), conditional to the fact the substitute teacher
provides or can provide work performance. In the present case, the
applicant accepted substitution offers but never provided any work
performance. The CLP has asked itself, how can someone, in good
faith, offer her services to an employer knowing in advance she
won't be able to render them, and then ask to be compensated
for said services?
Moreover, the Court of Appeal referred to the underlying
principle of article 40 of the Act being the request by the
pregnant worker to be re-assigned to other duties, and otherwise,
her right to stop working. In the present case, the appellant never
issued such a request.
Finally, the appellant alleged discrimination with regard to her
pregnancy pursuant to sections 10 and 16 of the Quebec Charter
of human rights and freedoms
("Charter"). The Court of Appeal
concluded that such discrimination was not proven. Also, the Court
reaffirmed the absence of a contract between the Commission and the
appellant therefore excluding application of article 16 of the
The Quebec Court of Appeal is thus confirming a restrictive
interpretation of the re-assignment right provided by the Act.
However, it is apparent that many similar issues will occur in the
future and courts will inevitably have to consider all legal, moral
and ethical matters associated with the right of women in the
workplace to benefit from such programs.
In collaboration with Patrick Prévost, student at
Norton Rose Canada LLP
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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