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 ("CSST").

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 Act.

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 Charter.

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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