On May 1, 2014, the Supreme Court of Canada considered whether
it is safe to allow teachers to go to work with children in
Dionne v. Commission scolaire des Patriotes 2014 SCC
To be fair, the issue was more nuanced than that.
The case originated in Quebec. Quebec's health and safety
scheme allows a pregnant woman to refuse work where the work
presents a health or safety danger to herself or her fetus. The
employer then has an obligation to offer re-assignment, or if that
is not possible the option of "Preventative Withdrawal".
An employee on Preventative Withdrawal stops working and receives
income replacement benefits.
Dionne was a pregnant teacher. She was offered a one-day
teaching position, but turned it down on the basis that children
carry germs and those germs posed a risk to her fetus. Her doctor
supported this course of action.
The School Board took the position that as Dionne never began
work, she was not a "worker" entitled to the benefits of
Preventative Withdrawal. The Board's position was based on the
definition of "worker" in Quebec's civil code.
The Supreme Court of Canada held Dionne was a "worker"
as that term was used in the relevant health and safety
legislation, which the Court held provided a broader definition of
The Court's analysis was heavily influenced by the policy
behind the legislation:
"The Act therefore protects
pregnant women in two significant ways: it protects their health by
substituting safe tasks for dangerous ones, and it protects their
employment by providing financial and job security."
While this case clarifies the definition of "worker"
under Quebec's occupational health and safety laws, its
significance is broader.
The case demonstrates a continuing trend by the courts toward
extending legislated rights to include individuals who may not be
in a typical employer-employee relationship. Legislation that is
considered remedial is provided a broad reading and the prudent
employer is best served by acting on the basis the legislation
applies to, rather than excludes, individuals who are providing
services but may have once been considered outside the employment
It may well not be safe for a teacher to go to work with
children. Where that is the case and legislation provides a right
to refuse unsafe work, an employer has an obligation to comply with
that legislation, even if the teacher never does start work or go
to the workplace.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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