Canada: Introduction of the Administrative Labour Tribunal and of the Commission des normes, de l'équité, de la santé et de la sécurité du travail

On June 12, 2015, Bill 42 entitled An Act to group the Commission administrative des régimes de retraite et d'assurances and the Régie des rentes du Québec (the "Act") received royal assent. The Act was published in the Quebec Official Gazette this past September 16.

Administrative Labour Tribunal

The Act will have a major effect on the structure of the decision-making bodies in the area of labour law, as it abolishes the Commission des relations du travail (the "CRT") which is responsible for ensuring compliance with the Act Respecting Labour Standards. It also abolishes the Commission des lésions professionnelles (the "CLP") which manages the compensation scheme for workers who have suffered workplace injuries. As of January 1, 2016 the Administrative Labour Tribunal (the "ALT") will take over the respective jurisdictions of those commissions.

The ALT will have four divisions, i.e. the labour relations division, the occupational health and safety division, the essential services division, and the construction industry and occupational qualification division.

The labour relations division will be responsible for deciding matters arising under the Labour Code and the Act Respecting Labour Standards (primarily proceedings alleging psychological harassment, prohibited practices and unjust dismissal).

The occupational health and safety division will be responsible for hearing matters arising under sections 359, 359.1, 450 and 451 of the Act Respecting Industrial Accidents and Occupational Diseases, as well as those arising under sections 37.3 and 193 of the Act Respecting Occupational Health and Safety. Jurisdiction for hearing such matters is currently exercised by the CLP.

The essential services division will be responsible for hearing matters arising under Chapter V.1 of the Labour Code (specific provisions applicable to public services and the public and para-public sectors).

Finally, the construction industry and occupational qualification division will be responsible for hearing matters arising pursuant to various statutes, including the Act Respecting Workforce Vocational Training and Qualification and the Act Respecting Labour Relations, Vocational Training and Workforce Management in the Construction Industry.

The Commission des normes, de l'équité, de la santé et de la sécurité du travail

The institutional changes do not end there, however, as the Act also creates a new commission, namely the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the "Commission") which will replace the Commission de l'équité salariale, the Commission des normes du travail and the Commission de la santé et sécurité du travail (CSST) as of January 1, 2016. The latter three commissions will ipso facto be abolished.

Procedure before the ALT

One of the major changes brought about by the Act concerns the institution of proceedings before the various divisions of the ALT. As is the case under the Code of Civil Procedure, the Act provides that a matter is commenced by a proceeding called an "originating pleading"¹ which must be filed in an ALT office in either Montreal, Quebec City or any other administrative region where there are a sufficient number of matters instituted to justify the presence of an office. It would appear however that while matters must be instituted in one of the ALT's designated offices, the Tribunal can sit at any location within the province. In addition, the Act provides that where a hearing before the ALT is to be held in a municipality having a functioning courthouse, the ALT is authorized to use one of its courtrooms for the hearing².

What sets the procedure under the Act apart is that fact that the originating pleading must specify the conclusions sought and the grounds in support of them³. This change could have a material impact on complaints of psychological harassment, for example.

Moreover, it is not the Commission that will receive the originating pleading, but the ALT itself, which must then deliver a copy to the other parties and to the Commission. The Commission, in turn, has 20 days within which to send the ALT and each of the parties a copy of the record in its possession relating to the contested decision.⁴

The ALT will have the right to access the Commission's files regarding matters falling within the jurisdiction of the occupational health and safety division.⁵

On another note, it comes as no surprise that the Act contains provisions promoting a pre-decision conciliation process⁶, which is of a piece with Quebec's overall legislative strategy to promote alternative dispute resolution methods, which is reflected in the provisions of the new Code of Civil Procedure.

Hearings before the ALT will as a rule be conducted before a single member of the tribunal, except in exceptional cases where the president of the ALT considers it appropriate to assign a matter to a panel of three members⁷. The president will also have the power to assign priority to the hearing of a matter⁸, and to assign one or more assessors to assist members sitting on the occupational health and safety division⁹.

The decisions of this new tribunal will be subject to internal review in cases where a new fact is discovered, or a substantive or procedural defect likely to invalidate the decision, or where a party did not have sufficient opportunity to make representations or be heard. A review proceeding must be brought by way of a motion filed with the tribunal within a reasonable time after the discovery of the new fact or defect that could vitiate the decision¹⁰. Decisions of the ALT are final and without appeal, and are enforceable in accordance with their terms and conditions¹¹. They are also of course subject to the superintending and reforming power of the Superior Court.

While the Act is fairly exhaustive with respect to the procedure to be followed before the ALT, it does contain, like the Code of Civil Procedure, a provision allowing its members to supplement any procedural inadequacies with any procedure consistent with the Act and its procedural and evidentiary rules.¹²

Transitional measures

The Act provides that any matter pending before the CRT or the CLP is to be continued before the competent division of the ALT, as are matters for which the hearing has already begun. Such matters are to be continued and decided by the same commissioner originally assigned thereto who has become a member of the ALT¹³. This necessarily implies that the mandate of commissioners of the CRT and the CLP is continued as members of the ALT¹⁴. By contrast, the administrative mandate of the presidents and vice presidents of the CRT and the CLP, like that of members of the CLP¹⁵, will end on December 31, 2015.¹⁶

The Act also provides that for already instituted matters, the new procedural rules may be set aside and the old ones applied if the legislative changes cause injury to a party. However, in the case of matters for which the hearing has already begun, the relevant former rules of evidence, procedure and practice will continue to apply¹⁷.

In any event, until the adoption of a regulation containing all of the procedural and evidentiary rules applicable to the ALT¹⁸, the current rules applicable before the CLP and the CRT will continue to apply on a suppletive basis, to the extent they are consistent with the Act¹⁹.

Conclusion

There is no question that the introduction of the ALT and of the new Commission will have a significant impact on the structure of the decision-making apparatus in the areas of labour and employment law and workplace health and safety law. These changes will bring about a certain uniformization of the rules applicable to decision-making bodies in these areas. The impact of the new the new procedure for instituting proceedings will merit close scrutiny after the upcoming Holiday season. Stay tuned!

1 Section 11
2 Section 36
3 Section 12
4 Section 13
5 Ibid.
6 Sections 21 to 25
7 Section 29
8 Section 31
9 Sections 30 and 84
10 Sections 49-50
11 Section 51
12 Section 43
13 Section 261
14 Section 258
15 The members of the CLP appointed pursuant to section 385 of the Act Respecting Industrial Accidents and Occupational diseases, excluding commissioners.
16 Sections 259-260
17 Section 262
18 Section 115
19 Section 263

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