On June 5, 2014, the Quebec Superior Court, sitting in judicial
review of a decision of the Commission des lésions
professionnelles (the "CLP")1 caused
considerable consternation regarding the interpretation of the
Act Respecting Industrial Accidents and Occupational
Diseases (the "Act") by concluding that an
employer, despite having contributed to a comprehensive regime for
rehabilitating a worker following an industrial accident, must also
fulfil the duty to accommodate under Quebec's Charter of
Human Rights and Freedoms (the "Charter").
Consequently, unless the Court of Appeal overturns the Superior
Court's decision, an employer can no longer simply maintain
that a position constituting "suitable employment", as
defined in the Act, does not exist within its organization: in
order to respect the worker's functional limitations the
employer must now also examine the reasonable possibility of
accommodating the worker by adapting his or her current position
– or even some other position – to make it
compatible with those limitations.
In the Caron case, the employer had informed the worker
and the workplace health and safety board, the Commission de la
santé et de la sécurité du travail (the
"CSST") that no suitable employment position compatible
with the worker's functional limitations was available. The
CSST had accordingly agreed to put together a personalized
rehabilitation program in order to allow the worker to find a
different position elsewhere on the job market.
The worker contested this decision up to the level of the CLP,
arguing that the employer was bound to fulfil its duty to
accommodate under the Charter. More specifically, the worker
maintained that the employer was capable of adapting a position
within its organization so as to make it compatible with his
The CLP dismissed the worker's contestation2. It
held that neither the CSST nor the CLP has the power to order any
remedial measures other than those set out in the Act. In
accordance with the clear majority trend in the case law, the CLP
reiterated that the rehabilitation process provided for in the Act
constitutes reasonable accommodation as mandated by the
The worker appealed that decision via a motion for judicial
review by the Superior Court, contending that the CLP's
decision was unreasonable.
Decision of the Superior Court
The Superior Court concluded that the CLP had erred by refusing
to compel the employer to fulfil its duty to reasonably accommodate
the worker pursuant to the Charter of rights.
Specifically, the Court considered that the CLP should have
determined whether the employer had discriminated against the
worker when it maintained that it had no suitable employment
position available. If it determined that the employer had in fact
discriminated, the CLP should then have applied section 49 of the
Charter and ordered the employer to accommodate the worker.
Consequently, the Superior Court remanded the case to the CLP,
instructing it to decide on the worker's contestation in light
of the Charter's requirements for reasonable accommodation.
Even more surprisingly, the Court opened the door to a
contestation of the constitutionality of the prescribed period
within which a worker may exercise his or her right to return to
work under section 240 of the Act (one year or two years, depending
on the number of employee's in the organization) by suggesting
that it could eventually be declared
If the Superior Court's decision is upheld by the Court of
Appeal, the CSST and the CLP will henceforth have to determine, in
cases such as this, the feasibility for the employer, without undue
hardship, of altering the duties of the worker's pre-injury
position to render it compatible with his or her functional
limitations. The employer would then have to establish that it had
examined every potential means for accommodating the worker, and
was unable to do so without undue hardship.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
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