Under the Act Respecting Industrial Accidents and
Occupational Diseases1 (the "Act")
the Occupational Health and Safety Commission ("CSST")
has broad powers in all matters relating to work accidents and
their aftermath. In the recent decision of
Société des établissements de plein-air du
Québec ("Sépaq") vs. Québec
Union Public Employees and Francine Beaulieu,2 the
Quebec Court of Appeal reviewed an arbitration decision considering
issues of reinstatement and accommodation following an absence due
to a work accident.
The employee was a seasonal worker employed by Sépaq, a
Quebec Government corporation which runs Québec's parks
and certain tourist attractions. After he suffered a work accident
and was absent from work, the CSST determined that he had a
permanent disability, with functional limitations rendering him
unable to return to any employment with Sépaq. The CSST did
find him capable of doing certain light work, but no jobs for which
he was qualified were available at Sépaq.
The employee did not appeal the CSST's decision. Instead,
the employee's union brought a grievance alleging that the
employer had not fulfilled its duty to accommodate the employee and
asked for reinstatement of the employee into his position. At the
outset of the hearing before arbitrator Beaulieu, Sépaq
raised a preliminary objection arguing that the issue raised by the
grievance fell within the exclusive jurisdiction of the CSST, which
had already rendered a decision. The arbitrator upheld the
objection and declined to hear the grievance on the merits.
The Quebec Superior Court overturned the decision of the
arbitrator holding that:
"When it comes time to verify whether an employer has
fulfilled its obligation to accommodate an employee suffering from
functional limitations following a work accident, this task falls
to a grievance arbitrator because it calls into question the
exercise of an employer's management rights in the organization
of its business."3 [our translation].
The Court of Appeal overturned the decision of the Superior
Court and upheld the decision of the arbitrator, relying on section
349 of the Act, which reads as follows:
"The Commission [CSST] has exclusive jurisdiction to
examine and decide any question contemplated in this Act unless a
special provision gives the jurisdiction to another person or
Given that the CSST had indeed decided that, as a result of the
work accident, the employee was unable to return to his
pre-accident employment and that no other suitable employment was
available at the employer, it agreed that the arbitrator had no
jurisdiction over the grievance.
The Court of Appeal added that, although the provisions of the
Quebec Charter of Human Rights and Freedom, are deemed to
be part of all collective agreements, the Charter does not create a
parallel regime allowing an employee to seek redress in respect of
a situation which has already been the object of a decision of the
Given this decision of the Court of Appeal, it now seems clear
that once the CSST has exercised its jurisdiction and decided the
issues relating to an employee's ability to return to work at
the accident employer, either in the pre-accident employment or in
a suitable position, the findings of the CSST will bind the
parties. A grievance arbitrator will have no jurisdiction to
adjudicate on the matters covered in the CSST's decision.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).