Canada: No Double Compensation During The Summer For Teachers Entitled To Income Replacement Benefits

On May 30, 2019, Quebec Court of Appeal Justice Suzanne Gagné dismissed the motion for leave to appeal the decision of the Quebec Superior Court in Commission scolaire de la Capitale v. Ferland1 presented by the Syndicat de l'enseignement de la région de Québec, a union representing teachers in the Quebec City region. 

The denial of leave to appeal put an end to a dispute originating with a grievance filed by the union in which it maintained that school board Commission scolaire de la Capitale was not paying a teacher entitled to an income replacement benefit (IRB) during the summer, the equivalent of an income replacement indemnity under the Act respecting industrial accidents and occupational diseases (the "Act"). 

The union had essentially argued that the school board was required to pay the teacher, in addition to her salary pursuant to section 5-10.55 of the collective agreement, the IRB paid to the school board by the provincial labour standards, pay equity and occupational health and safety board (the "CNESST"). 

Section 5-10.55 of the collective agreement, which is at the heart of the dispute, provides as follows: 


While a teacher is entitled to an income replacement indemnity under the Act respecting industrial accidents and occupational diseases (CQLR), c. A-3.001), until the date of consolidation of the employment injury the teacher is entitled to the remuneration she would have received had she been at work, subject to the following. The calculation of her gross taxable remuneration is as follows: the school board shall make the equivalent of all deductions required by law and the collective agreement, and the resulting net remuneration shall be reduced by the amount of the income replacement indemnity under the Act, and the resulting difference shall be considered the gross taxable remuneration from which the school board shall make all deductions, contributions and assessments required by law and the collective agreement. 

For the purpose of applying this clause, the teacher's remuneration is the remuneration she would have received had she been at work, including any bonus for regional disparities and annual supplements to the extent that the school board has not named a replacement for the teacher responsible for the duties in question. 

(emphasis added) 

In dismissing the motion for leave to appeal, the Court of Appeal thus confirmed that the judgment rendered by the Superior Court, which endorsed the arguments of the school board, contained no question of fact or law that needed to be resolved by the Court of Appeal. Section 5-10.55 of the collective agreement thus does not allow a regular teacher to receive an IRB, in addition to his or her full salary. 

The facts underlying the dispute

A regular full-time teacher sustained an employment injury requiring her to be off work for two weeks. When she returned to work, although the injury was not consolidated by the CNESST, the school board temporarily assigned her administrative tasks for which she received full pay.

When the summer recess began, her temporary assignment was suspended, and it resumed when the school year began at the end of the recess. 

During the summer, the school board paid her IRBs as well as an additional amount to ensure that she received all of her annual salary still due to her, in accordance with the calculation of the 10-month adjustment provided for in section 6-8.01 of the collective agreement. During that same period, the CNESST reimbursed the school board for the IRBs it had paid her. 

In its grievance the union maintained that during the summer, when the teacher was not at work, the school board should have paid her, in addition to her regular salary, the full amount of the reimbursement it received from the CNESST for that period. 

The arbitration award of July 16, 2018

In his award, arbitrator Gilles Ferland decided that the IRBs received by a teacher during the summer recess could not be considered double compensation. 

Thus, a teacher could receive both her full salary and IRBs for the same period. In support of his decision, the arbitrator stated that (1) in his view there is no remuneration during the summer recess and the teacher is not considered to be at work, and (2) an IRB does not constitute remuneration, as it is paid to compensate a loss of earnings capacity. 

The arbitrator therefore concluded that section 5-10.55 of the collective agreement allows the teacher to be paid the income replacement indemnities that the school board receives from the CNESST, as well as her usual salary. 

The Superior Court's decision of March 28, 2019

The school board applied for judicial review of the arbitrator's decision. 

In his decision, Superior Court Justice Gilles Blanchet analyzed the arbitration award in detail. He first indicated that in his view section 5-10.55 of the collective agreement was free of any ambiguity. He then pointed out that the section provided, simply and clearly, that the school board was required to pay the teacher her regular salary for the entire period of her disability, and in exchange the CNESST would reimburse it an amount corresponding to that of the IRB determined by the CNESST. 

Judge Blanchet specified that this mechanism, provided for in the collective agreement, was intended to spare the teaching staff the uncertainty and delays inherent in the CNESST's indemnification process for occupational accidents or illnesses. He also pointed out that this payment mechanism is set out in section 126 of the Act. 

Thus, according to the judge, sections 5-10.55 and 5-10.56 of the collective agreement guarantee a teacher on temporary disability leave that she will receive, without any delay, nothing less than her regular salary, but nothing more. The judge asserts that to conclude otherwise would lead to an absurd result where the teacher would receive double compensation, exceeding the remuneration she was otherwise entitled to. 

The judge thus concluded that the school board respected its obligation to provide the teacher with the same remuneration to which she would have been entitled had she not been the victim of an occupational accident or illness, as provided in section 5-10.55. 

For those reasons he granted the conclusion sought by the school board in its application for judicial review and quashed the arbitration award. 

Dismissal of the motion for leave to appeal

In her decision dismissing the union's motion for leave to appeal, Justice Suzanne Gagné pointed out that the Superior Court's decision raised no question of fact or law justifying the intervention of the Court of Appeal. 

In its motion, the union maintained that the judge below erred in his characterization of the nature of an IRB. It also took the judge to task for considering that such an indemnity constitutes salary, as it was intended rather to compensate a loss of earnings capacity. In this regard Justice Gagné referred to various portions of the Superior Court's judgment in order to show that this was not in fact the conclusion that the judge had reached. She pointed out moreover that the judge clearly stated that the characterization of an IRB was not the question at issue. 

Thus, whether the judge had decided that an IRB was intended to compensate lost income or to compensate a loss of earnings capacity, he would have come to the same conclusion: i.e. the union's argument leads to an absurd result, in that it allows a teacher to receive double compensation. 

The repercussions of this decision

By dismissing the motion for leave to appeal the Superior Court's decision, the Court of Appeal has put an end to a dispute whose repercussions for school boards would have been major. 

For had the union's arguments prevailed, a school board would have to pay a teacher receiving an IRB during the summer recess her full salary, without receiving what can be termed a reimbursement from the CNESST for the portion equivalent to the IRB, which portion would also be paid to the teacher. 

This decision crystallizes and solidifies a trend in the case law going back 25 years, whereby paying a teacher his or her full salary in addition to the IRB constitutes double compensation. 

We encourage all school boards to ensure that their current practices do not allow for such double compensation. And if that is in fact the case, the school board would be well advised to send a written notice to the union informing it of the imminent change that will be made to those practices. 

With summer just around the corner, this decision of the Court of Appeal is welcome news indeed!


1 2019 QCCS 1093

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions