Canada: The Employer's Duty To Make Reasonable Efforts To Reassign Employees Before Dismissing Them For Incompetence… Continued

Last Updated: July 10 2019
Article by Rose Massicotte and Justine Laurier

Most Read Contributor in Canada, July 2019

On May 31, 2019, the Court of Appeal handed down its decision in Commission Scolaire Kativik c. Association des employés du Nord québécois1(Kativik), regarding the criteria applicable to administrative dismissals for incompetence. The decision follows an arbitral award that cast doubt on the state of the law with respect to the criteria applying to employers seeking to rid themselves of incompetent workers. Those criteria, clearly established in the jurisprudence since the 2005 judgment in Costco Wholesale Canada Ltd. c. Laplante2 (Costco), are the following:

  1. The employee must be aware of the company`s policies and the employer's expectations in his or her regard;
  2. The employee's performance deficiencies must have been pointed out to him or her;
  3. The employee must have had the necessary support to correct those deficiencies and achieve the performance goals set;
  4. The employee must have had the benefit of a reasonable period of time to adjust; and
  5. The employee must have been advised of the risk of dismissal, should there be no improvement on his or her part.

The Arbitral Award and the Judicial Review

On March 23, 2015, arbitrator Jean Ménard rendered an award3 allowing a grievance and quashing the administrative termination of an employee on grounds of incompetence, because the employer had failed to fulfill its obligation to reassign the employee to less demanding duties. A receptionist position, which the employee had previously occupied, was available. The arbitrator castigated the employer for having imposed too short a deadline (three days) on the employee to decide whether or not to accept the job.

The employer filed a motion for judicial review, arguing that the making of reasonable efforts by employers to reassign employees before terminating them for incompetence formed no part of the five-part test applying to Québec employers under Costco. On October 4, 2017, the Superior Court upheld arbitrator Ménard's ruling, holding that it fell within the range of reasonable outcomes.

Mr. Justice Pierre C. Gagnon noted that the criteria applied in the Costco judgment were derived from the "Edith Cavell" test, announced in the British Columbia case of Edith Cavell Private Hospital v. Hospital Employees' Union, Local 8104, an arbitral award later confirmed by the Supreme Court in 20045. The "Edith Cavell" test includes the duty to reassign an incompetent employee, to the extent possible. The judge found that there was no justification for refusing to apply that criterion as part of Québec's Costco test and that the duty was an obligation of means, with each case to be treated as a cause d'espèce.

You can find here one of our previous newsletters, in which we analyzed in greater detail the development of the criteria governing administrative terminations for incompetence in Québec case law, as well as the Superior Court judgment that was the subject of this appeal.

The Court of Appeal's Decision in Kativik

On August 15, 2018, the employer's motion for leave to appeal was allowed. The employer's basic contention was that by imposing on it the obligation to assign the employee concerned to another position, the arbitrator had added to the criteria that the Court of Appeal had approved in Costco and had thereby flouted Québec law.

The appeal was dismissed. The question of whether any firing for unsatisfactory performance was justified was held to be dependent on the context, to be assessed in light of the particular facts of each case. Nevertheless, it was not necessarily improper for a grievance arbitrator to decide that an administrative termination was unjustified where the employer had failed to identify any other available post in his company that was compatible with the employee's skills. The arbitral award in this case was deemed to possess all the attributes of reasonableness, although another decision-maker might indeed have reached a different conclusion.

The Court of Appeal, however, clarified that the arbitrator had not sought to impose any systematic obligation to relocate an incompetent employee to another job before terminating him or her for administrative reasons. The court further added that the judge in first instance should not have based his ruling on his own view of the law governing administrative dismissals, but only on the reasonableness of the arbitral award, and the court did not share his approach.


In consequence, although the highest court in the province has now confirmed both the arbitrator's and the Superior Court's decisions in Kativik, it has clarified that an employer's duty to make reasonable efforts to reassign employees before dismissing them for incompetence, is not a rigid criterion to be added to the five (5) other Costco criteria that employers must apply systematically.

In addition, since the Superior Court's judgment, decision-makers have been hesitant to apply the reassignment duty as a sixth criterion of the Costco test. We even published a newsletter article, which you can find here, citing a decision handed down by the Administrative Labour Tribunal, where adding a sixth criterion to the Costco test was rejected.

It remains to be seen how administrative tribunals and arbitral panels will interpret this sixth criterion as a result of the Court of Appeal's decision. Nor do we know for the moment whether the employer will seek leave to appeal the judgment to the Supreme Court of Canada.

We cannot, however, ignore the fact that reassigning an employee must henceforth form part and parcel of the employer's thought process before firing an employee whose performance is unsatisfactory, especially where the circumstances indicate that the employee could perform satisfactorily in another vacant position, as was the case in Kativik. Although not a decisive factor in itself, this criterion may cause decision-makers to be more inclined to set aside terminations on grounds of incompetence.


12019 QCCA 961.

2 2005 QCCA 788.

3 2015 QCTA 247.

4 [1982] 6 LAC (3d) 229.

A.U.P.E. c. Lethbridge Community College, 2004 CSC 28.

About BLG

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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