Canada: Pregnancy Can Trigger The Right To Refuse Work, Says Supreme Court Of Canada

Last Updated: May 16 2014
Article by David K. Law

Most Read Contributor in Canada, October 2018

In Dionne v. Commission scolaire des Patriots, the Supreme Court of Canada has ruled that pregnancy is not an incapacity which prevents a worker from performing work but rather, is a condition which makes a worker more vulnerable to dangers in the workplace.  A statutory "right to refuse" therefore protects a pregnant worker's employment status when she declines work that may be dangerous during pregnancy.

The Law in Question

The Province of Quebec's occupational health and safety statute has provisions which require employers to "protectively re-assign" a pregnant worker whose regular working conditions constitute a hazard to the worker or her unborn child.  The worker must hand in a Preventive Withdrawal and Reassignment Certificate (the "Certificate') completed by a doctor, to identify her limitations and the dangers to her health or that of fetus.  

If an employer does not make such a re-assignment the worker can stop work until re-assigned or until the delivery of the child.   The employer pays the worker's salary for five days and thereafter, a public fund pays the worker 90 percent of her net salary while absent due to the danger at work.   The worker's employment status and related benefits are not interrupted.  Entitlement to these benefits is determined by the Commission de la santé et de la sécurité du travail ("the CSST"), the workers' compensation agency in Quebec.

The Case

The Commission scolaire des Patriots ("the School Board") hired Marilyne Dionne as a supply teacher.  Ms. Dionne was essentially "on call" to perform shifts as a teacher.  She was frequently called in for several years.

In September 2006 before starting the school year as a supply teacher, Ms. Dionne became pregnant.  Due to her susceptibility to certain viruses her doctor completed Certificates for the CSST.   The CSST advised her that the Certificate could not take effect until she was contracted during the school year to supply teach.  Once Ms. Dionne was called by the School Board (November 13, 2006) and offered work, the CSST viewed her as having a contract of employment and it triggered her entitlements to preventive reassignment (and the income indemnity). 

The School Board appealed to the Commission des lésions professionnelles ("CLP") arguing Ms. Dionne's incapacity to enter the classroom meant that no contract of employment was ever formed with her.  Not being under contract she could not be a worker and thus, the CLP found, she had no rights under the Act to protection or indemnity.  Both the Superior Court and the Quebec Court of Appeal found this to be a reasonable interpretation of the Act.  Ms. Dionne and her union did not, appealing to the Supreme Court of Canada.

The Decision of the Supreme Court of Canada

Under the Quebec Civil Code, a contract of employment exists when these conditions are present:  performance of work, payment of wages, and a relationship of subordination between the parties.   The Quebec Court of Appeal and lower Courts concluded that if a worker exercises the right to refuse work that is dangerous, she must be incapable of performing the work being offered.   If the work cannot be performed, no contract of employment can exist. Therefore, the person is not a "worker" with rights to protective reassignment or indemnity under the Act.  

Justice Abella, writing for a unanimous Supreme Court of Canada, took a firm view:

The scheme is intended to protect pregnant workers who have a contract to work.  It would be anomalous, to say the least, to use the legislated right of a pregnant worker to withdraw from an unsafe workplace to conclude that her withdrawal negates the formation of the contract of employment.

The Court found that a purposive interpretation of the Act was necessary in order to interpret its terms:

The Act defines "worker" differently than does the Civil Code — a person who carries out work even without remuneration rather than an employee who works for remuneration. It is therefore clear that the legislative intention was to reach a much broader worker constituency than that contemplated by "employee" in the Civil Code.  This more generous interpretation of "worker" is warranted not only by the Act's status as being of public order, it is permitted by the preamble to the Code, which allows other laws to "complement the Code or make exceptions to it"

Justice Abella went on to note that under the occupational health and safety law, a person who refuses dangerous work is deemed to still be an employee.  To exclude an employee from employment status, because she was in danger and unable to do the work, would work against the very meaning of the law:

if Ms. Dionne had not been pregnant, there would be no dispute that she would be entitled to a healthy and safe work environment each time she went into the school to teach, as would any "worker" under the Act.  A pregnant supply teacher is no less qualified for employment than a teacher who is not pregnant, and her aptitude and qualifications do not change upon becoming pregnant.

The Court concluded that when Ms. Dionne accepted an offer of supply teaching work on November 13, 2006 she did, in fact, form a contract of employment notwithstanding that she was unable to safely perform the job duties.  And the Court makes it crystal clear about what it means to be a pregnant worker:

Her pregnancy was not an incapacity that prevented her from performing the work, it was the dangerous workplace, and that in turn triggered her statutory right to substitute that work with a safe task or withdraw.

Implications for Employers

The Court has declared that pregnancy is not so much an incapacitating condition, as a condition which makes the worker more susceptible to certain workplace risks.  The presence of such danger triggers the worker's right to refuse work (as defined in the occupational safety law applicable to the workplace).

For employers where protective reassignment is offered to pregnant workers, such as Quebec, the implications of the Dionne ruling are simple: reassignment or indemnity must be provided to any person offered work, whether she can do the original work or not.

A broader implication of the Dionne decision is this: where an employer makes an offer of work to an individual, that individual can accept the offer and then refuse to perform the work, in whole or in part, if the work poses a "danger" to her or him.   The person's right to refuse protects his or her employment status while the danger is assessed and controlled.

While the Dionne ruling may be surprising in that respect, it appears complementary to the duty to accommodate under most human rights legislation in Canada.  Where an employer makes an offer of work to an individual, that person is entitled to accept it and then ask for accommodation.  The employer is then obligated to accommodate to "the point of undue hardship."  In practice this differs little from what the Court has decided in Dionne. 

The Dionne decision underscores the rule that public welfare statutes, such as occupational health and safety laws, will be interpreted broadly and purposively.  While the lower Courts may have been technically accurate defining employment narrowly, the outcome – disenfranchising a pregnant worker from rights created to protect pregnant workers, because she was pregnant, is not one the Supreme Court of Canada would likely accept easily, as we have seen.   

The case is also proof of an old nostrum in the legal profession, when arguing a case: "it is good to have the law, but it is better to have the facts."  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions