Commission de la santé et de la sécurité
au travail c. Caron, 2015 QCCA 1048
On June 15th 2015, the Court of Appeal changed the rules
regarding the determination, in a right-to-return-to-work
situation, of a suitable employment by saying that
the Charter of Human Rights and Freedoms (the
"Charter") applies to such cases.
When a worker still has functional limitations following an
employment injury, an evaluation process of the pre-injury position
is performed by the Commission de la santé et de la
sécurité au travail (the
"CSST") in concert with the employer. Following
this process, if the pre-injury position was not compatible with
the functional limitations, the employer could notify the CSST that
the position could not be adapted and that no other suitable
employment was available in the employer's establishment. The
employee was then taken in charge by the CSST to ensure the
vocational rehabilitation of the worker in the labour market. This
was done without examining the accommodation efforts made by the
employer. The Court of Appeal rendered a precedent-setting decision
which changed the situation.
From now on, the provisions of the Act respecting
Industrial Accidents and Occupational Diseases (the
"Act") which foster the worker's rehabilitation and
his right to return to work have to be applied in light of the
Charter's provisions. Indeed, reminding us that the Charter
goes beyond the law, the contract of employment and the collective
agreement, the Court of Appeal stated that the duty to accommodate
employment injuries is now inherent to the Act. Consequently, the
right to return to work of an employee with functional limitations
following an employment injury calls for an accommodation, just
like for handicaps of a personal nature.
In addition, the Act provides that a worker has a right to
return to work for one to two years, depending on the size of the
establishment. However, the Court of Appeal decided that this
time-limit is only a factor to consider, without being decisive.
Therefore, the employer can no longer automatically close the file
of an employee as soon as his right to return to work expires. The
general rules of accommodation still apply. Consequently, the
worker could successfully claim his right to return to work even
after the expiration of the Act delay.
In other words, even though the Act does not impose to the
employer an obligation to find a suitable employment for a worker
in his establishment, neither to re-hire the worker after the
expiration of the right to return to work, the Charter adds to the
provisions of the Act and impose these duties to the employer, to
the point of undue hardship. The CSST (and the Commission des
lésions professionnelles in the event of dispute) will
therefore not be able to apply the Act literally, and will instead
have to make sure that the employer, while considering a suitable
employment, tries to accommodate the injured worker, to the point
of undue hardship.
Practical Tips Following this Judgement
Perform an analysis in order to identify all possible
accommodations when the injured worker begins his rehabilitation:
saying that no suitable employment is available without actually
making any efforts to find a position compatible with the
worker's limitations will not be sufficient.
Suggest to the CSST, when it is performing an analysis of the
pre-injury employment, to also evaluate other available positions
that could potentially be compatible with the identified functional
Conserve and update, when available, an ergonomic analysis of
the requirements for each position, in order to be able to provide
alternatives or to anticipate undue hardship situations.
As the expiry of the time-limit for exercising the right to
return to work approaches, gather all the complete updated medical
information in order to evaluate if this right may be exercised and
the prognostic of the injury.
In unionized environments, involved the union in the search for
alternatives, since it also has a duty to collaborate with regard
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.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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