Labour and Employment

On April 19, 2024, the Supreme Court of Canada rendered its decision in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, marking the end of an almost 15 year-long debate on the freedom of association of managers and their exclusion under the Labour Code. The facts The Association des cadres de la Société des casinos du Québec (the “Association”) represents first-level managers at the province’s four casinos operated by the Société des casinos du Québec (the “Société”). The Association is a professional syndicate within the meaning of the Professional Syndicates Act. Although the Association is not governed by Quebec’s Labour Code (the “Code”), given the exclusion of managers from the notion of “employee” provided for in theCode, this exclusion does not prevent members of the Association from associating. In fact, in 2001, the Association and the Société signed a memorandum of understanding governing certain aspects of the collective labour relations. However, faced with the inability of the Association’s members to access the remedies offered by the Code, such as protections against bad-faith bargaining, the right to strike and the specialized dispute resolution mechanism, in 2003 the Association lodged a complaint with the International Labour Organization’s Committee on Freedom of Association. Dissatisfied, the Association then filed a petition for certification under the Code in 2009, requesting that the exclusion of management staff from the definition of “employee,” and therefore from the unionization process under the Code, be declared unconstitutional, as it infringed on the freedom of association protected by the Charters. The Société raised an exception to dismiss, since managers are excluded from the application of the Code. Proceedings prior to the Supreme Court of Canada In its 2016 decision, the Administrative Labour Tribunal (the “ALT”) found that the exclusion of managers from the definition of “employee” violates the freedom of association of the first-level managers represented by the Association, and that this infringement is not justified in a free and democratic society. The exclusion was declared inoperative in the context of this application. According to the ALT, the Association does not benefit from a meaningful process for bargaining in good faith for its members’ working conditions. Furthermore, the Association members’ right to strike is infringed without any other mechanism being provided, which, according to the ALT, constitutes a substantial infringement of the right to collective bargaining. In 2018, the Superior Court of Québec allowed the Société’s application for judicial review. The Superior Court concluded that the exclusion of managers from the Code does not contravene the freedom of association. Employers must be able to trust their managers and, for the sake of employee unionization, there can be no ambiguity about managers’ allegiance1. Managers can organize and associate, but not under this law. In 2022, the Court of Appeal overturned the Superior Court’s ruling and reinstated the ALT’s decision. According to the Court of Appeal, the ALT was right to conclude that the effects of the exclusion from the Labour Code regime constitute substantial interference with the exercise of the freedom of association. The Supreme Court of Canada's decision In a new development on April 19, the Supreme Court of Canada allowed the Société’s appeal, essentially ruling that the exclusion of managers from the Code does not violate the freedom of association. Although the seven (7) judges hearing this case concluded that the Dunmore analytical frameworkis the relevant one, there are applicable concurring reasons. In the opinion of the majority of the Court, a two-part test must be applied: The Court must consider whether the activities in question fall within the scope of freedom of association; and The Court must consider whether the statutory exclusion substantially interferes with those activities, in purpose or effect. In this case, the Association alleged that by excluding managers from the application of the Code, the government was preventing its members from “engaging in a process of meaningful collective bargaining with their employer, with constitutional protection for the Association, sufficient independence from the employer, and the right to recourses if the employer does not negotiate in good faith."2  According to the Supreme Court, the Association’s claim was indeed based on an activity that is protected under the freedom of association, thus passing the first part of the test. However, the Association’s claim fails the second part of the test. The Supreme Court concluded that the exclusion of managers from the Code’s definition of an employee does not substantially hinder the Association’s activities. As the Superior Court had found, this exclusion is intended to distinguish managers from employees and avoid conflicts of interest, in particular by ensuring that the employer can trust its managers and that employees can protect their own interests. The memorandum of understanding between the Société and the Association demonstrates that the members are able to associate and negotiate with the employer. Moreover, this protocol enables the Association to take legal action before the ordinary courts of law in the event of non-compliance with its terms and conditions. According to the Supreme Court, “the right to meaningful collective bargaining does not guarantee access to a particular model of labour relations."3 Conclusion After several years of debate, the Supreme Court of Canada has finally settled the question of the constitutionality of the exclusion of managers from Quebec’s collective labour relations regime set out in the Labour Code. As this exclusion does not violate managers’ freedom of association, they will not be able to validly file petitions for certification under the Code. However, they will be able to exercise their freedom of association in other ways, as in this case, through the Professional Syndicates Act, as well as before the ordinary courts of law.  This decision is a positive one for Quebec employers, as it protects the structure of workplaces and the allegiance of managers within organizations. 2018 QCSC 4781, para. 116 et seq. 2024 SCC 13, para. 47. 2024 SCC 13, para. 55.

At a time when the pandemic is continuing to have repercussions and we are experiencing a severe labour shortage, the educational childcare sector is facing unprecedented challenges. These circumstances have led to a reassessment of the standards relating to the presence of qualified childcare staff with children. The purpose of this bulletin is to shed light on the regulatory amendments that have been made to the Educational Childcare Regulation1 (the “ECR”), and more specifically to the required ratio of qualified staff members. Enacted by Order in Council 102-2024,2 these amendments came into force on March 1, 2024. Childcare providers should imperatively take cognizance of these regulatory amendments, as they will help them optimize their operations and improve their ability to respond to the challenges they are facing in attracting and retaining qualified childcare staff. Background On July 22, 2021, in response to the impact of the pandemic on educational childcare services, amendments were made to the requirements respecting the ratio of qualified staff members provided for in the ECR. During the first 9 months that followed the end of the public health emergency, the ratio was reduced to one qualified staff member out of three. During the 12 months after that, it was increased to one in two. The ratio applicable to childcare services was expected to return to pre-pandemic levels, or a ratio of two qualified staff members out of three, on March 1, 2024.3 However, faced with the labour shortage,4 which is particularly affecting the childcare sector, the government estimated that many childcare providers would not be able to comply with a qualified childcare staff ratio of two out of three, as was initially required for that date. As a result, the legislator amended the ECR once again so as to address ongoing problems and prevent service closures or disruptions. These amendments are summarized below. New ratio requirements for childcare services Section 23 of the ECR has been amended to reaffirm the general standard stipulating that the ratio of qualified childcare staff must be two out of three. However, section 23.1 of the ECR now provides for certain exceptions to the previously established rule on the ratio of qualified childcare staff. The notable exceptions are as follows: A ratio of one qualified childcare staff member out of two may be maintained during the provision of childcare until March 31, 2027. A ratio of one qualified childcare staff member out of three will be authorized while childcare is being provided during the first and last business hour of the permit holder’s core hours. A ratio of one qualified childcare staff member out of three will also be authorized during the first five years following: the initial issuance of a day care centre permit; the modification of a day care centre permit to increase, by 8 or more, the maximum number of children that may be provided with childcare in the permit holder’s facility; or the conclusion of a first subsidy agreement between the Ministère de la Famille and the holder of a day care centre permit, provided that the agreement was entered into after October 31, 2023. Conclusion The changes described above, came into force on March 1, 2024, are intended to address the current shortage of qualified staff in the childcare sector in Quebec. Although the temporary flexibility and the exceptions to the qualified staff ratio will help childcare providers guarantee the continuity and accessibility of their services, compliance with prescribed ratios is still mandatory.  Note that failure to comply with these requirements may lead to administrative penalties or penal sanctions, as well as a decision by the Ministère de la Famille suspending, revoking or not renewing a permit. The members of the Lavery team are available to answer your questions. The information and comments contained herein do not constitute legal advice. They are intended solely to enable readers, who assume full responsibility, to use them for their own purposes. Chapter S-4.1.1, r. 2. Regulation to amend the Educational Childcare Regulation, O.C. 102-2024 (G.O. II) Regulation to amend the Educational Childcare Regulation, O.C. 879-2021 (G.O. II). Ministère de la Famille, Mémoire au conseil des ministres : Projet de règlement modifiant le Règlement sur les services de garde éducatifs à l’enfance, tabled on September 20, 2023; Ministère de la Famille, Portrait de la main-d’œuvre du réseau des services de garde éducatifs à l’enfance, 2022–2023, October 2023.

On August 11, 2023, the Court of Appeal of Quebec handed down a decision in CFG Construction inc. c. R.,1 dismissing the appeal of the guilty verdict against an employer, CFG Construction inc. (“CFG”), for criminal negligence having caused the death of one of its employees. This decision serves as a reminder of the potential criminal liability of an employer, depending on its legal form, for the death or bodily injury of its employees in the workplace. More specifically, the case provides unique insight into the sanctioning of an “organization,” a term that includes a body corporate or an association of persons,2 for faults committed by a “senior officer” under the Criminal Code (“Cr.C.”). The facts The decision stems from a fatal accident that occurred on September 11, 2012, on the site of a wind farm in Saint-Ferréol-les-Neiges, involving a heavy container truck owned by CFG. The truck flipped over on a downhill curve, killing the driver, a CFG employee with 25 years of experience as a truck driver. At the trial, emphasis was placed on the maintenance of the truck and its braking system. The case A number of decisions were rendered in this case. Regarding criminal liability, the Court of Québec handed down two judgments, one finding CFG guilty and the other establishing the sentence. On February 14, 2019, CFG was found guilty of criminal negligence causing the death of the aforementioned truck driver. Essentially, the Court found that CFG’s failure to perform maintenance on the truck, which it had a legal obligation to do, constituted a [translation] “marked and significant departure from the conduct expected of a reasonable person, given the nature and circumstances of the activity in question”.3 For instance, the truck involved in the accident had 14 major pre-existing defects, all of which related to its braking system.4 The Court was decisive in establishing CFG’s liability through its foreman-mechanic, whom it considered to be a “senior officer” within the meaning of the Cr.C., and whose faults could be ascribed to CFG in this case,5 as explained below. On December 3, 2019, CFG was fined $300,000, plus a victim surcharge of 15% of the fine, and placed on a three-year probation with many conditions. This decision brings to light the factors to consider in sentencing an organization, as well as the only penalty that may be imposed, namely a fine of any amount in the case of a criminal act.6 Among these factors, the court must consider “any advantage realized by the organization as a result of the offence”.7 In this regard, failure to incur the necessary expenses to perform maintenance on a vehicle driven by an employee may be construed as an “advantage” for the employer-owner and is considered an aggravating factor in sentencing.8 Case law on this subject is “tenuous”, but fines ranging from $100,000 to $750,000 have been given in various situations.9 The notion of “senior officer” set out in the Criminal Code In its decision, the Court of Appeal provides the historical context that led to the inclusion of a legal mechanism in the Cr.C. governing the liability of organizations for death and bodily injury in the workplace. In 2003, Parliament passed Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations) further to the 1992 tragedy at the Westray mine in Nova Scotia, where 26 miners were killed after methane detectors were disconnected with mine supervisors’ knowledge.10 Among the key amendments central to the CFG case, sections 217.1 and 22.1 of the Cr.C. provide not only for the legal obligation of any person who directs or has the authority to direct how another person does work or performs a task to take reasonable steps to prevent bodily harm to that person, but also for the possibility of holding an organization “liable” for an offence of negligence by reason of the actions of certain persons working for it, either a “representative” or a “senior officer,” as these terms are defined in section 2 of the Cr.C. The CFG case as a whole is an example of how the aforementioned legal mechanism applies where an employee considered to be a “senior officer” departs from the reasonable standard of care expected in the circumstances. As mentioned above, CFG was found guilty because of the important role that the head mechanic played, in that he had the authority to carry out the maintenance required on vehicles, including on the defective truck.11 As a result, CFG was legally obliged to ensure that the mechanic had the skills to do the work and provide him with the necessary instructions and equipment, as well as an adequate work environment.12 In short, it is important to remember that: The term “senior officer” refers to “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer”.13 This definition [translation] “does not only include senior executives and a company’s board of directors”.14 Ultimately, an employee will be considered as a “senior officer” according to the functions s/he performs and the responsibilities s/he assumes in a given organization.15 Finally, the Court of Appeal points out that failure to fulfill the legal obligation set out in section 217.1 of the Cr.C. does not, in and of itself, constitute an offence.16 In the circumstances of this case, failure to comply with the aforementioned section along with the provisions on criminal negligence causing death provide the basis for CFG’s guilt, which constitutes the defining characteristic of this “positive” obligation in criminal law. In this regard, section 22.1 of the Cr.C. serves as the basis for CFG’s liability insofar as the organization was a “party to the offence” given the role that its mechanic played in the matter. Conclusion The CFG case shows how criminal negligence in the workplace is condemned outside of the penal provisions applicable under Quebec’s labour laws. Incidentally, the notion of “senior officer” within the meaning of these laws should not be confused with that codified in the Cr.C. While the former is limited in scope, the term “senior officer” in the Cr.C. is defined more broadly to include, in addition to directors and senior executives, other persons who play a significant role in leading or managing a given area of activity within an organization. Note that in this case, CFG’s guilt could have resulted from the conduct of more than one representative or senior officer.17 It is also important to remember that the extent to which proceedings in such matters involve natural persons rather than organizations, or extend to every person who may be held liable, is a matter of prosecutorial discretion. 2023 QCCA 1032. “organization,” section 2 of the Cr.C. Supra note 1 at para. 10 (as the Court of Appeal pointed out, the analytical framework for determining criminal negligence was updated further to the decision of the Supreme Court of Canada in R. v. Javanmardi, 2019 SCC 54). R. c. CFG Construction inc., 2019 QCCQ 1244, para. 141. Ibid, paras. 255 and 285. R. c. CFG Construction inc., 2019 QCCQ 7449, paras. 84 and 149. Section 718.21a) of the Cr.C. Supra note 6, para. 91. Ibid, paras. 163 to 167. Supra note 1, paras. 60 and 62. Supra note 4, para. 35. Ibid, para. 381. “senior officer”, section 2 of the Cr.C. Supra note 4, para. 256. Ibid. Supra, note 1, para. 73. Ibid, para. 72; see also supra note 6, para. 14.

In recent years, the job market has changed considerably, especially further to the pandemic and the impacts it has had. Employers and employees in Quebec faced unprecedented situations, and these appear to have led to a significant increase in claims for recognition of psychological occupational injuries, such as adjustment disorders and depression.1 Consequences of long processing times at the Bureau d’évaluation médicale  The increase in psychological injury cases is not without consequences for employers, and it is now common for the evaluation procedure at the Bureau d’évaluation médicale (BEM) to take several years. The considerable amount of time it takes to obtain an opinion from a member of the BEM has a major impact on the management of such occupational injury cases. For example, many healthcare professionals (i.e., attending physicians) categorically refuse to confirm an injury when an employee is waiting for a expert medical opinion from the BEM, which can delay the resolution of a case for several years. Without a BEM opinion on the medical issue in dispute, it is impossible for employers to schedule hearings or even attempt settlement discussions. Furthermore, in some cases, processing times can even lead to the deterioration of the employee’s health. Without an opinion from the BEM, it can be difficult for the employer in question to reintegrate the employee without a specific diagnosis or functional limitations having been established. This also makes it difficult for the employer to put proper measures in place to safely reintegrate the employee in the workplace. Like many other Quebec organizations, the BEM is currently lacking personnel, especially psychiatric experts.2 This specific problem causes many issues for Quebec employers in their management of occupational injury cases, and also generates enormous costs. However, another option to speed up the process is now available. The Paccar Canada (Usine de Ste-Thérèse) case Just recently, the occupational health and safety division of the Administrative Labour Tribunal (ALT) rendered a very interesting decision that provides Quebec employers with a way to obtain a medical expert opinion more quickly as part of a BEM procedure. In this case,3 a worker was injured when she fell in the parking lot of the plant where she works. The CNESST accepted her claim for an occupational injury having caused a contusion to her elbow and wrist, a cervical sprain and a mild concussion. A few months later, the worker’s attending physician diagnosed her with major depression, which the CNESST subsequently recognized as being linked to the initial event. The employer challenged this decision. However, a hearing date cannot be set as long as the procedure is still under way at the BEM, in particular as concerns the diagnosis to be used to rule on whether the psychological injury is admissible. After receiving a medical certificate from the worker’s attending physician confirming the major depression diagnosis, the employer mandated a psychiatrist to assess her. The psychiatrist’s medical opinion differed from that of the attending physician, in particular where the diagnosis was involved. In May 2021, the employer asked the CNESST to request an opinion from the BEM. In June 2021, the CNESST applied the BEM to obtain the opinion of a member, more specifically the opinion of a psychiatrist. A month later, having still not received a notice to report from a member of the BEM, the employer asked the CNESST to designate a health professional so that they could render a medical opinion that would be binding on the parties, asking the CNESST to apply paragraph 3 of section 224.1 of the Act respecting industrial accidents and occupational diseases (AIAOD), which states the following: 224.1. Where a member of the Bureau d’évaluation médicale gives an opinion pursuant to section 221 within the time prescribed in section 222, the Commission is bound by that opinion and shall render a decision accordingly. Where the member of the Bureau d’évaluation médicale fails to give his opinion within the time prescribed in section 222, the Commission is bound by the report obtained from the health professional it designated, where that is the case. If the Commission has not obtained such a report, it may request, from the health professional it designates, a report on the matter mentioned in any of subparagraphs 1 to 5 of the first paragraph of section 212 which is the subject of the contestation; in that case, the Commission is bound by the opinion of the member of the Bureau d’évaluation médicale or the report of the health professional it has designated, whichever it receives first, and shall render a decision accordingly. The Commission shall file in the worker’s record any opinion or report it receives even though it is not bound thereby. Section 222 of the AIAOD stipulates that the member of the BEM must render their opinion within 30 days of the date on which the record was transmitted to them and send it without delay to the Minister, with copies to the CNESST and to the parties. We understand from section 224.1 of the AIAOD that the CNESST is bound by the medical opinion of the designated health professional and must render a decision accordingly, which may then be contested by the employer or worker, as the case may be. This would ultimately allow the parties to be heard by the ALT, which would then render a decision on the merits. In the Paccar case, the CNESST denied the employer’s request for an administrative review of the CNESST’s refusal to refer the case to a health professional, in spite of paragraph 3 of section 224.1 of the AIAOD. This refusal was the crux of the dispute. Thus, the ALT had to determine whether the CNESST should have granted the employer’s request. The ALT did indeed determine that the CNESST should have done so, given the BEM’s inability to appoint a psychiatrist within a reasonable time. The decision The CNESST argued that paragraph 3 of section 224.1 3 of the AIAOD provides discretionary power, as the section indicates that the CNESST may request a report from health professional it designates. In the CNESST’s opinion, the word “may” gives it discretionary power, and it is thus not obliged to designate a health professional in all cases. The ALT explained that considering the objectives of the AIAOD, the BEM procedure must be carried out swiftly and efficiently. Thus, if the BEM is unable to appoint a psychiatrist from among its members within a reasonable amount of time, the objectives of the AIAOD cannot not be achieved, and the result of it becoming impossible to complete the BEM procedure would be entirely inconsistent. Clearly, this was not the government’s intention. In this context, it would be difficult for the CNESST to justify not using its power to designate a health professional, because if it did not do so, the case would no longer move forward, and this would not be good for any of the parties involved, including the CNESST. The ALT concluded that in accordance with section 9 of the Act to establish the Administrative Labour Tribunal,4 it had the power to enforce paragraph 3 of section 224.1 of the AIAOD.In the Paccar decision, the CNESST had undertaken during the hearing to designate a health professional within a short time should the ALT so rule, who would proceed to assess the worker and render a decision accordingly. Practical information to make the process easier At this stage, it is very difficult to predict how the CNESST will apply section 224.1 of theAIAOD in the future. However, we have every reason to believe that many employers will unfortunately find themselves in the same situation as the employer in the Paccar case, if they aren’t already, especially where psychological injuries are involved. It is reasonable to assume that the CNESST will not apply paragraph 3 of section 224.1 of the AIAOD as long as an employer does not formally request that it do so. In the future, we recommend that you closely follow the progress of your BEM request with the CNESST: Once 30 days have passed since you made your request, we recommend that you contact the CNESST agent assigned to your case to find out how far they have gotten in processing your request. If your request has not yet been submitted to the BEM, we recommend that you send a letter to the CNESST in which you request that it apply paragraph 3 of section 224.1 of the AIAOD, and more specifically that it designate a health professional. Remember to ask the CNESST to render a formal decision on your request so that you can apply for its review if it is not in your favour. If you are facing this type of situation, we invite you to consult our team of employment law professionals, who can help you manage your case. For example, in 2021, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) reported a 9% increase in recognized stress-related injuries (1,679 cases in 2021). See portrait-violence-stress-harcelement-2018-2021.pdf (gouv.qc.ca, in French only). AI_M20222152_stat-diverses-bem_MTESS.pdf (quebec.ca, in French only). The BEM has compiled organizational statistics for the period from 2017 to 2022. In particular, the BEM has reported a decrease in the number of opinions it issues, down from 11,045 in 2017–2018 to 9,651 in 2021–2022. The BEM also recorded a considerable increase in the average time taken to process a case (from 69.7 days in 2017–2018 to 138.7 days in 2021–2022). Paccar Canada (Usine de Ste-Thérèse), 2023 QCTAT 3989. T-15.1.