This case concerns a pregnant substitute teacher (D) who decided
not to report to work after having accepted ten offers to teach
when she learnt from her doctor that she was vulnerable to
contagious viruses that could cause harm to her unborn child.
In 2005, after having completed an internship in preschool and
elementary education for the Commission scolaire des Patriotes (the
School Board), D was added on a list of occasional teachers. She
acted as a substitute teacher for the School Board 88.15 days
during the 2005-2006 school year and 2.50 days in September
D learned she was pregnant on September 24, 2006. The following
day, she contacted the call center responsible for the to inform
them that she was pregnant and that she would not be available to
work until she receives test results from her doctor.
On October 5 and November 16, 2006, D's doctor completed
two certificates providing for D's Preventive
Withdrawal.By doing so, he confirmed that D's workplace was
putting D at risk for exposure to a virus that can be spread by
groups of children, namely Parovirus B-19 and rubella, which can be
harmful for her unborn child.
On November 3 and November 27, 2006, after having received the
certificates, the Commission de la santé et de la
sécurité du travail (CSST) informed D that she was
eligible for Preventive Withdrawal as part of the "For a Safe
Maternity Experience" program.
On November 13, 2006, D communicated with the call centre, which
offered her a one-day teaching position on the same day. D accepted
the offer, but announced that she would not be able to perform her
duties, as she was on Preventive Withdrawal. Ten more offers were
made to her from the call centre between November 13 and 30, 2006.
Each time, D accepted the offer, but then announced that she would
not be able to perform her duties, as she was on Preventive
On December 1 and December 11, 2006, the School Board appealed
the CSST's decisions confirming the eligibility of D to
Preventive Withdrawal to the Commission des lésions
professionnelles (CLP). The CLP overturned the CSST's decisions
on the grounds that the protection afforded by the Act Respecting
Occupational Health and Safety(OHSA) did not apply to D because
her occasional teacher status prevented her from being a
"worker" under the OHSA. The CLP further concluded that D
was not bound by any employment agreement with the School Board.
According to the CLP, the inclusion on the list of occasional
teachers did not create any obligation for the School board, nor
for D. In fact, the employment agreement of a substitute teacher
was for a duration that did not exceed the assignment of the
specific substitution. Considering that the inability of D to go
into the school due to health risks meant that she was incapable of
performing the work required by the School Board, the CLP concluded
that no contract of employment had been formed.
Rejecting the analysis of the previous courts, the Supreme Court
held that under the OHSA, a worker on Preventive Withdrawal who
refuses to perform dangerous work does not refuse to execute her
employment contract. Rather, the worker is exercising a right
expressly provided by the OHSA.
In the opinion of the Supreme Court, a contract was formed on
November 13, 2006 when D accepted the School Board's offer to
supply teach and therefore, D became a "worker" in
accordance with the definition provided at Section 1 of the
The Supreme Court explained that D's pregnancy was not an
incapacity that prevented her from performing the work, being
otherwise available, but rather it was the dangerous workplace that
prevented the performance of the assignment. The Supreme Court
based its position on the lessons taught by Beetz J. in Bell Canada, to the effect that Preventive
Withdrawal is not a failure or an inability to perform the work,
but rather it is deemed by the statutory scheme to be a
substitution of the work. More specifically, the legislature
established a presumption that a pregnant worker who exercises her
right to Preventive Withdrawal and refuse to work in a dangerous
workplace is deemed to be at work. According to the Supreme Court,
to conclude like the previous courts did would frustrate the
objectives of the OHSA.
The CLP's conclusion to the effect that D had not entered
into an employment agreement because she refused to perform her
work in a dangerous workplace did not take into account that she
was on Preventive Withdrawal and therefore, was deemed to be
"at work" within the meaning of Article 14 of the
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