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

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."  

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