Lavery celebrates International Women’s Day today Today, Wednesday, March 8, we celebrate International Women’s Day. IWD is an opportunity to honour those who inspire us every day and who continue to demonstrate the progress we’ve made towards gender equality in the workplace, setting an example for future generations. This year, several of the firm’s women professionals shared why they decided to become lawyers. They talked about how they view women’s contributions to the evolution of the legal profession, how the profession has changed since they started and how it will continue to change. Louise Cérat Former Partner I decided to become a lawyer as the result of a simple but happy accident. From the beginning of my legal studies, I was aware of how lucky I was. I’ve sincerely enjoyed practicing law and have always felt privileged to be part of this community and the firm, which is the only place I’ve ever practiced, a place I am deeply attached to. When I first started out, the situation in the 80’s could have, in many ways, scared off even the most fearless among us. At first, there were not many women in the field. There were only two of us when I joined Lavery, which had been created following a recent merger and which comprised, if I’m not mistaken, about fifty lawyers at the time. Bear in mind, it was only in 1980 that the Act to establish a new Civil Code introduced the notion of equality between spouses in the management of family property and the education of children. However, the recognition of gender equality in 1980 didn’t mean that it was immediately reflected in the legal world as it is today. For example, there was no maternity leave policy in most large law firms until the late 1980s, and even then it was a rather feeble policy aimed only at salaried lawyers. The few women lawyers who became partners and got pregnant had to cover the income the firm lost as a result of their absence, not to mention the other difficulties they faced. Since then, stronger numbers have won us some battles, but the campaign is not over yet! The influx of female lawyers has brought an abundance of talent, renewed professionalism, a fresh perspective and added value to the legal world and to society in general, which were lacking for far too long. As we celebrate International Women’s Day, I call on men’s support to achieve equality for their wives, sisters, colleagues and friends, and I’m confident we’ll get there. Justine Beauchesne Associate I realized this was the career I wanted to pursue during my time at university. Very early on in my career, I had a strong interest in business law, especially transactional law. I like the idea of being more than just a company’s lawyer, which is why I also see myself as a business partner. This profession is full of challenges, but accompanying our clients through transactions that are often significant milestones in their lives gives me a strong sense of accomplishment. Women have made important contributions to the legal community throughout history, despite facing obstacles and discrimination. Women fought for the right to study law, to be admitted to the bar and to practice. These efforts have enabled today’s women to become judges, legal professionals and leaders in the field of law. In recent years, women have continued to break down barriers in the legal world. There are more and more women law school graduates, and they are increasingly represented in the justice system and in leadership roles. They play a key role in shaping the legal community and in advocating for gender equality and social justice. I believe women have brought new insight and a different approach to the legal profession. They have also been instrumental in the fight for gender equality and social justice, making significant contributions to the development of the legal system and shaping the legal landscape and even society as we know it. The increased presence of women in the legal world, and particularly in management positions, is bringing a much-needed change to this more conservative environment. If more women take on leadership roles in law firms, corporate legal departments and other legal organizations, they can help to create a more diverse and inclusive profession that is gender sensitive and more reflective of the communities it serves. Marie-Hélène Jolicoeur Partner From the beginning, I had a desire for justice and fairness. I was also determined to speak up for those who can’t speak for themselves, who find it difficult to express or defend themselves, or who have trouble arguing a position with determination. I wanted to understand the law in order to be able to interpret it and ensure that it is properly applied. Women sometimes have different skills; they can present things from an alternative perspective and convince people in a different way. Women’s contribution to the legal profession is substantial and I feel it is recognized by my male peers. I’ve noticed that more and more women are finding their place in the business, building confidence and being heard. I see them in decision-making roles, which has been positively received. They are supported by their peers. I believe that they will continue to play an increasingly important role, if that’s what they want, and as long as they express this desire and remain supported. Marie-Pier Landry Article Student I was motivated to become a lawyer by the varied intellectual challenges, the development opportunities and the human relations at the heart of the legal practice. I am lucky to have many women role models in my professional circle. I see empathy, leadership and passion in their practice. I am certain that bringing more women into the legal profession makes for a more inclusive and fair legal system. Sophie Roy Senior Associate At first, I was first driven by the concept of justice. I also wanted to become a lawyer in order to speak out and be heard. Without falling into gender stereotypes, women’s presence has certainly contributed to making the legal profession more inclusive. The ability to listen and to collaborate seem to be increasingly important values. Justine Chaput Associate What inspired me to become a lawyer was first and foremost my desire to make a difference in my community and to tackle the intellectual challenges of the legal field. I believe women have brought new insight and a different approach to the legal profession. They have also been instrumental in the fight for gender equality and social justice, making significant contributions to the development of the legal system and shaping the legal landscape and even society as we know it. I am confident that the contribution of women to the legal profession will continue to evolve and help eliminate prejudice and discrimination in order to ensure equal opportunities. Marie-Nancy Paquet Partner I have always felt that I needed to fulfil my dreams and use my talents. This was especially important to me because my mother regretted all her life that she had not been able to achieve her professional goals, and she suffered as a result of this. For her children, it was an exhortation to never give up. Moreover, for as long as I can remember, I have had a tendency to be very vocal. It soon became clear to me that a career as a lawyer would be an opportunity to put my skills to good use. Having said that, I didn’t really know what it meant to be a lawyer, as no one in my environment practised law or had even been to university. In my opinion, the contribution of women to the evolution of the legal profession is essential. We must not forget where we started and how far we have come thanks to the courage of our predecessors. I can’t help but think of all the women who would have had the talent to practice law, but couldn’t even think about doing that in their day. In the legal profession, women first had to prove that they had as much right to be there as their male colleagues. I have deep admiration for the trailblazing women who embraced careers as lawyers when they were the outliers in their classes. One look through a yearbook from the 1950s-1960s is enough to see that women were hardly there at the time. Among the 70 or so law graduates at my university in 1960, there were only three women. It took courage to study law as a woman! Things have changed and there are far more women in the field now, especially in the undergraduate cohorts. But challenges remain. However, one element is worth noting, and that is the influence that women have had on the transformation of the work-life balance. The fact that young men working in law are now also interested in this issue is undoubtedly due to the fact that women have entered the profession and, more generally, all areas of professional life. Looking towards the future, we must continue to work to ensure that the remaining glass ceilings are broken and that both men and women can find an equal place in the profession. Jennifer Younes Article Student Growing up, I witnessed a range of situations where individuals were marginalized. As a result, I chose to study law to reduce the inequalities that exist between different groups of people. In my opinion, lawyers are the voice of justice and I chose to become a lawyer because I wanted to serve the cause of justice. Certainly the growing number of women in the legal profession in recent decades has had a positive impact on the evolution of the legal profession. The sharp increase in the representation of women has enabled the courts to have a more complete appreciation of certain issues, and will continue to do so into the future. In my opinion, the more stories we have in the field, the deeper and more diverse our legal discussions become. And the more diverse the legal community becomes, the more accessible it will be to members of these previously unrepresented groups.
Marie-Hélène Jolicoeur Partner, Lawyer
- Québec, 2007
Marie-Hélène Jolicoeur is a partner and a member of the Board of Directors of the firm. She has an expertise in the fields of labour and employment law, health law, and occupational health and safety law.
She appears before administrative tribunals and common law courts, primarily the Tribunal administratif du travail . She also acts as spokesperson for employers negotiating collective agreements.
Ms. Jolicoeur was called to the Bar in July 2007 and joined Lavery in July 2011 after practising with another law firm for several years.
From 2007 to 2009, she also worked for the legal advisory service at Montreal’s Small Claims Court on behalf of the Young Bar Association of Montréal. Since 2009, she has been actively involved in the Jeune Chambre de Commerce de Montréal. On July 1, 2011, she was appointed its Vice-president, Corporate affairs and general secretary, and from 2012 to 2014, she served on its board of directors as chair of the Human resources committee. Marie-Hélène currently sits on the board of directors of a not-for-profit organization whose mission is to house and provide psycho-social services to young girls in difficulty.
Professional and community activities
- Served on the Board of directors of the Jeune Chambre de Commerce de Montréal (2012-2014)
- Vice-president, Corporate affairs and secretary general of the Jeune Chambre de Commerce de Montréal (2011-2012)
- Volunteered at the Salon Visez droit of the Bar of Montreal (2011)
- Chaired the Annual Meeting and Legal services committee of the Jeune Chambre de Commerce de Montréal (2010 to 2011)
- Served on the Annual meeting and legal services committee of the Jeune Chambre de Commerce de Montréal (2009 to 2010)
- Volunteered on International Volunteer Day, Jeune Chambre de Commerce de Montréal and Young Bar Association of Montréal (2009)
- “Alcool et drogues en milieu de travail: agir pour éviter le pire!” (Drugs and Alcohol in the Workplace : Act to Avoid the Worst!), Avantages Magazine, February - March 2016
- “Gérer la multiplicité des recours devant le TAT” (Managing multiple recourses before the TAT) in collaboration with Élodie Brunet, CRHA, November 2016, Ordre des Conseillers en ressources humaines agrées
- Lavery Business, The Powers of CSST Inspectors, No. 12, March 2012
- Comment on the decision in Caisse Desjardins Thérèse-de-Blainville and Syndicat des employées et employés professionnels-les et de bureau, section locale 575 (SEPB-CTC-FTQ) – L'adoption d'un code vestimentaire : un employeur “met ses culottes”, mais à quel prix ?, Bulletin ressources humaines, Éditions Yvon Blais, EYB2012BRH1044, March 2012
- Webinar L’affaire Boies un an plus tard; quel est le diagnostic ?, Éditions Yvon Blais, April 24, 2012
- Co-author of Droit de la santé, Lois et règlements annotés, Bulletin Droit de la Santé (BDS) et Droit de la santé en bref published by Éditions Yvon Blais (2010-2011
- Les procédures judiciaires visant la protection des personnes dont l’état de santé mental représente un danger pour elles-mêmes ou pour autrui in Psychopathologie, Jeffrey S. Nevid, adapted edition, Éditions du Renouveau pédagogique, April 2011
- Comment on the decision in Québec (Commission de la santé et de la sécurité du travail) v. Dollarama, s.e.c. – La personne morale fait toujours parler d’elle, Repères, Éditions Yvon Blais, April 2011
- Comment on the decision in Portnoy v. G. (L.), Sup. Ct. - La durée d’une ordonnance d’autorisation de soins : une question de faits, March 2010, Repères, Éditions Yvon Blais, EYB201OREP925
- Comment on the decisions in G. (G.) v. CSSS Richelieu-Yamaska and Centre de santé et de services sociaux Pierre-Boucher v. G. (A.) – La preuve de la dangerosité en matière de garde en établissement, April 2010, Repères, Éditions Yvon Blais, EYB201OREP927
- Comment on the decision in Turmel v. Turmel – L’examen médical d’une partie contre son gré : une requête utile lorsque le recours met en cause l’état de santé de cette dernière, June 2010, Repères, Éditions Yvon Blais, EYB201OREP946
- La toxicomanie au travail (Drug addiction at work), Lavery breakfast seminar in collaboration with Cyclone santé, November 22, 2016
- Les médias sociaux (Social Media), Seminar, November 18, 2016, École du Barreau du Québec
- Comment faire face à un employé à problème, Stratégies PME 2014, Palais des congrès, November 26, 2014
- Comment faire face à un employé à problème, Stratégies PME 2012, Palais des congrès, November 22 and 23, 2012
- La réhabilitation et le retour au travail après une invalidité : comment s’y prendre pour éviter une rechute et prolonger l’absence, The Canadian Institute, Hyatt Regency Montréal, February 8, 2012
- Financement et CSST, Lavery Seminar 2012, Centre Mont-Royal, October 16, 2012.
- Chambers Canada in the field of labour and employment, since 2023
- The Canadian Legal LEXPERT® Directory in the field of labour and employment law, 2022
- The Best Lawyers in Canada in the field of labour and employment law, since 2020
- LL.B., Université de Montréal, 2006
Boards and Professional Affiliations
- Member of the Board of Directors of the firm (Lavery Lawyers)
- Young Bar Association of Montréal
- Jeune Chambre de Commerce de Montréal
In May 12, 2017, the Court of Québec1 concluded that an emergency call centre had no liability for property damage caused by first responders who broke down the door of a residence in order to assist a user in respiratory distress. In this case, the Court held that a call centre who required the intervention of a first responders service cannot be held liable for damages caused during the ensuing intervention, despite the fact that the call centre clerk had made a mistake by not providing the first responders with the access code to open the door. At the hearing, the facts were not contested by the call centre, which acknowledged that the access code for the front door had been provided to the call centre dispatcher but not to the first responders. Despite that mistake, the Court dismissed the action on the basis of the exoneration of liability provided for in section 42(2) of the Act respecting Pre-hospital emergency services2 (hereinafter the “Act”): 42. No person who acts as a first responder under this Act in accordance with the clinical intervention protocols determined by the Minister under section 39 shall incur liability for any injury that may result from his or her intervention, unless the injury is due to an intentional or gross fault. The immunity also applies to the authority having established the first responder service. Likewise, the person or body having required the intervention or assistance of a first responder service may not be held liable for any injury resulting from the intervention. [our emphasis] The Court held that the scope of this provision extended to the emergency call centre as “[a] body having required the intervention or assistance of a first responder service”.3 Up until this point, the provision had never been interpreted by the courts. Therefore, the Court stated that in the absence of any evidence of intentional or gross fault, the defendants could not be held liable pursuant to the second paragraph of section 42 of the Act respecting Pre-hospital emergency services.4 The clerk’s failure to provide the door access code, although an error, was not intentional and cannot be characterized as a gross fault. Furthermore, the Court stated that given that the firemen had to act very quickly, it cannot be presumed that they would have used the code to open the door to the user’s residence even if they had been in possession of that information. Furthermore, the evidence indicated that neighbours present at the relevant time told the first responders that they had the code for opening the door. In short, in the absence of evidence of intentional or gross fault, an emergency call centre could not be held liable. In our view, this decision is consistent with the object of the Act as set out in section 1, namely to “ensure that persons in need of pre-hospital emergency services are at all times able to obtain an appropriate, efficient and quality response aimed at reducing the mortality and morbidity rate among the recipients of pre-hospital emergency services”. Acting in concert with the first responder, the emergency call centre must also be able deliver rapid intervention by concentrating on its primary objective, which is to assist people in distress, without fear of being sued. Roy v. Groupe Alerte Santé inc., 2017 QCCQ 6729 (hereinafter the “Roy” case). Act respecting Pre-hospital emergency services, CQLR, c. S-6.2 (hereinafter the “Act”). Ibid., s. 42 (2). Roy, supra note 1, para. 15.
In Dollo v. Premier Tech Ltée,1 the Superior Court of Québec declared a clause contained in the Stock Option Plan (the “Plan”) offered by Premier Tech Ltée (“Premier Tech”) to some of its employees to be abusive and also declared Premier Tech’s conduct towards a dismissed senior executive to be oppressive within the meaning of the Canada Business Corporations Act (“CBCA”).THE FACTSIn May 1999, Premier Tech hired Christian Dollo (“Dollo”) as vice-president, finance. In 2001, Dollo was offered the opportunity to acquire stock options (hereinafter, the “Options”) of the corporation over time by participating in the Plan. Premier Tech’s shares then became publicly traded and Dollo acquired some of the shares in accordance with the Plan. In June 2004, he became president of Premier Horticulture, one of Premier Tech’s main subsidiaries.Premier Tech once again became a private corporation in February 2007. At that time, some executives holding Options, including Dollo, were asked to acquire shares. As part of the privatization of Premier Tech, new Options were offered to Dollo.During 2009, members of Premier Tech’s management team felt that Dollo’s performance fell short of the corporation’s expectations and that the relationship of trust was deteriorating. At the same time, Dollo became aware of clause 8.01.2 of the Plan, which stipulated that in the event of termination for any reason other than the death, retirement or disability of the participant, he or she would lose all of his or her Options which were vested but not yet exercised unless the Board of Directors decided otherwise. Worried about the existence of this clause, he requested information from the corporation’s management team and was reassured with respect to the possibility of losing his vested Options in the event of his termination.In August 2010, Dollo was terminated. At the time, he held 71,100 shares of the corporation and 207,619 vested Options. During the months that followed, Premier Tech and Dollo settled their disputes, with the exception of Dollo’s Options. During the fall of 2010, Dollo requested that the Board of Directors exercise its discretion under clause 8.01.2 of the Plan in order to allow him to retain his vested Options. The Board of Directors refused.In March 2011, Dollo instituted proceedings against Premier Tech and its majority shareholder. He asked the Court to declare clause 8.01.2 to be abusive and to recognize his right to exercise his vested Options (in order to collect the profits in the amount of $1,313,847). He added that Premier Tech was abusing its rights and was acting in an oppressive manner within the meaning of the CBCA. He further submitted that he had been illegally terminated and, accordingly, he claimed the value of the Options that he would have acquired and that he could have exercised during the twelve months following his termination.THE DECISION OF THE SUPERIOR COURT OF QUÉBECWAS CLAUSE 8.01.2 OF THE PLAN ABUSIVE?The Court first concluded that the Plan constituted an adhesion contract and that the context of the privatization of the corporation did not offer Dollo any real possibility to intervene with respect to the main provisions of the Plan.With regards to clause 8.01.2, the Court ruled that it was abusive and void. Following an in-depth analysis of the expert testimony, it concluded that such a clause [TRANSLATION] “is not found in the rules generally governing this type of contract” and that [TRANSLATION] “this type of clause is a rarity in the context of commercial practice.” The Court added that Dollo’s vested Options in fact constituted significant long-term incentive compensation. Under the Plan, this long-term compensation was not linked to Dollo’s performance. Rather, the last Options which were granted to Dollo in 2007 were vesting at the end of each month, regardless of his performance. The Court deemed it to be unreasonable that the use of clause 8.01.2 would cause the loss of such vested compensation. The loss of compensation that was vested in Dollo for the previous years during which Premier Tech benefited from his dedication lead the Court to conclude that clause 8.01.2 was not only unreasonable but it was also excessive.Finally, according to the Court, clause 8.01.2 was similar to a purely discretionary clause insofar as Premier Tech, in deciding to terminate Dollo, made a decision (namely, not to recognize that Dollo was entitled to exercise his vested Options) which depended entirely upon its discretion. Although the Court did not hold clause 8.01.2 to be truly purely discretionary, it was of the view that such a similarity supported it being qualified as abusive.However, the Court dismissed Dollo’s request regarding the Options he would have acquired during the twelve-month period following his termination since it would be inappropriate to provide a Plan member with “long-term compensation” to retain and motivate him while his employment was already terminated. Contractual justice demanded that this request be denied.WAS DOLLO TERMINATED WITHOUT CAUSE?The Court noted that Dollo’s termination could only be qualified as an administrative dismissal. In this context, the following steps must be followed:(1) The employee must be aware of the business’ policies and his employer’s expectations in his regard;(2) He or she must have been notified of his or her shortcomings;(3) He or she must have received the necessary support to correct him or herself and to reach his or her objectives;(4) He or she must have been provided with reasonable time to adjust;(5) He or she must have been warned about the risk of termination in the absence of improvement.The Court found that Dollo was only informed of the reasons for his dismissal following the institution of the proceedings against Premier Tech, that he received no support which would have allowed him to improve and that he had received no warning as to the risk of termination. In light of these elements, the Court was of the opinion that Dollo had been terminated without cause.WAS PREMIER TECH’S CONDUCT OPPRESSIVE WITHIN THE MEANING OF THE CBCA?The Court last reviewed the issue of whether the conduct of Premier Tech and its majority shareholder justified recourse to the oppression remedy in accordance with section 241 of the CBCA. It first established that Dollo constituted a plaintiff under the CBCA since it is possible to attribute this status to a person who was promised a portion of the share capital of a corporation. In addition, when he petitioned the Board of Directors regarding the exercise of his vested Options, Dollo was still a shareholder of Premier Tech. Finally, Dollo was a “potential shareholder” who would have been entitled to additional shares were it not for (abusive) clause 8.01.2.The Court mentioned that Dollo had legitimate expectations both of benefiting from the Plan, which constituted long-term compensation, and that his rights as an employee would be respected. According to the Court, Dollo had a right to expect that his termination be carried out in compliance with the steps provided for in the case law. Due to this non-compliance, Dollo was unable to exercise his options and protect himself from the brutal application of clause 8.01.2. The Court noted that simply declaring that clause 8.01.2 was void may not be enough to allow Dollo to benefit from the long-term compensation. In fact, [TRANSLATION] “legal and financial stumbling blocks [particularly the issue of financing the acquisition of the shares] will be found on the road to an easy resolution of this dispute.”2The Court therefore allowed the oppression remedy, concluding that the conduct of Premier Tech and its majority shareholder was abusive, and applied some remedial measures explicitly provided for at section 241 CBCA by:(1) Ordering the issuance of Premier Tech shares to Dollo;(2) Modifying the clauses of a contract to which Premier Tech was a party to settle the financing problems for the issuance of the shares (forcing Premier Tech to finance the issuance of the shares to Dollo);(3) Ordering Premier Tech’s majority shareholder to buy the shares so issued to Dollo, to reimburse Premier Tech for the financing of the issuance of the shares (that is, $612,857) and to pay the balance of the sale price to Dollo (that is, $1,313,847); and(4) Modifying clauses in the unanimous shareholders’ agreement in order to enable Dollo to receive the balance of the sale price of his shares notwithstanding the existence of certain provisions in the agreement which could have been invoked against him.For the full text of the decision (in French), click here.This decision of the Superior Court is currently on appeal._________________________________________1. 2013 QCCS 6100.2. Paragraph 356 of the decision.
CONTENT Notifying your insurer of potential legal proceedings : A sensible measure which may help you avoid significant costs! The ABCs of Managing >Absenteeism at WorkNOTIFYING YOUR INSURER OF POTENTIAL LEGAL PROCEEDINGS: A SENSIBLE MEASURE WHICH MAY HELP YOU AVOID SIGNIFICANT COSTS!Jonathan Lacoste-JobinCompany directors sometimes have the reflex of minimizing the importance of a letter of demand or of the threat of a legal action. Fearing, for example, to see their insurance premiums increase, they sometimes decide not to notify their insurer of potential legal proceedings. This can have significant consequences and cause problems that a simple notice could have avoided.OBLIGATION TO NOTIFY THE INSURERParticularly in liability insurance matters, the insured has the obligation to notify his insurer as soon as he becomes aware of any loss, as provided under article 2470 of the Civil Code of Québec. Such is the case, for example, upon receipt of a letter of demand. If the insured neglects to notify his insurer, the insurer may, in certain circumstances, refuse to respect its own obligations.This article also provides that the insured must declare any loss “which may give rise to an indemnity”, that is, which would be covered under the insurance policy. Once again, it is best to play it safe. In fact, it is not for the insured to determine whether a loss is covered or not1. When in doubt, it is therefore prudent to notify the insurer as soon as possible upon a loss occurring, the receipt of a formal notice or a legal action.A timely notice will allow the insurer to investigate, meet with the appropriate witnesses, visit the site, hire the necessary experts, etc. It will also allow the insured to more quickly be informed of the position of the insurer as to insurance coverage.Failing to receive such a notice, an insurer sustaining injury therefrom may set up against the insured any clause of the policy providing for forfeiture of the right to indemnity. A liability insurer could thus refuse to cover the loss and refuse to defend its insured against legal proceedings.COSTS OF DEFENCEOne of the main obligations of the insurer in liability insurance matters is that of defending its insured against any proceedings covered by the insurance policy. Article 2503 of the Civil Code of Québec provides that the costs and expenses resulting from actions against the insured, including those of the defence, judicial costs, lawyers’ and expert fees, are borne by the insurer, over and above the proceeds of the insurance. This obligation is all the more important since the costs of defending a legal action may escalate rapidly even if the amount claimed is not very high.With this in mind, it is therefore prudent and advisable to notify the insurer as soon as possible in order to have him assume these costs, irrespective of the amount claimed and the chances of the proceedings being successful.DEMONSTRATION OF INJURY SUSTAINED BY THE INSURERTo invoke a late notice, the insurer must however demonstrate that it suffered an injury therefrom. It may assert, for instance, that it was prevented from investigating and that the site of the loss has been disturbed between the event and the time it received the notice2. The disappearance of exhibits or evidence which would have allowed to establish the loss, exonerate the insured or involve a third party, the death of some witnesses, etc. may also constitute an injury to the insurer3.Although the courts require from insurers convincing demonstration of the injury sustained, failure to notify the insurer may be fatal to the claim of an insured, even if he successfully defends the liability proceedings instituted against him.4CONCLUSIONAn insured has the obligation to notify his insurer of a loss as soon as he becomes aware of it. Upon receipt of a letter of demand or a notice whereby he may incur liability, the insured should notify his insurer accordingly. Failure to do so may result in the insurer refusing to take up the defence of the insured and thus put him in a position where he has to incur significant costs which he may have avoided. It is always better to be safe than sorry.________________________________1 Marcoux v. Halifax Fire Insurance,  S.C.R. 278; Androutsos v. Manolakos, J.E. 2000-2046 (C.S.).2 Union canadienne Compagnie d’assurance v. Bélanger  R.R.A. 685 (C.A.).3 LEMAIRE, M., Du délai d’avis et de la prescription en assurance : quelques problèmes, Développements récents en droit des assurances (2001), Service de la formation permanente du Barreau du Québec, Yvon Blais, 2001, online: EYB2001DEV220.4 Axa Boréal Assurances inc. c. Université Laval J.E. 2003-540 (C.A.); See also Gagnon v. Ratté  R.R.A. 766 (C.S.).THE ABCs OF MANAGING ABSENTEEISM AT WORKMarie-Hélène JolicoeurINTRODUCTIONAbsenteeism brings with it high costs for employers, leading to losses in efficiency, productivity and even the demoralization of staff. In such a context, the employer must act quickly. This text provides an overview of the basic principles applicable to absenteeism.1The obligation to perform work is the foundation of the employment contract.2 The employer can expect work to be performed in a consistent manner and for such work to be of sufficient quality.However, a wide range of laws apply to the issue of absenteeism, sometimes making it difficult for employers to make sense of them all and to fully understand the scope of their managerial rights. In a unionized environment, such managerial rights are of course limited by the terms of the collective agreement.Generally speaking, an employer is entitled to be informed of the health of its employees , meaning that he or she may be provided with access to certain medical information. In addition, the employer has not only the right, but also the duty, under various occupational health and safety laws, to ensure that such an employee is capable of performing his or her work. The employer is also entitled to be informed of the reasons for the employee’s absence, to assess whether such justifications are reasonable, and, if necessary, to take disciplinary action.There are two forms of absenteeism, and each must be managed in a different way.UNJUSTIFIED ABSENTEEISMUnjustified absenteeism can leave the employee open to sanctions in accordance with the principle of escalating sanctions (verbal notice, written notice, short suspensions, lengthy suspensions, and dismissal).Unjustified absences are absences which are neither authorized nor justified, and include absences taken under false pretences. There are also other violations which are related to absenteeism, such as the failure to provide notice of an absence or of the fact that one will arrive late to work (even where such absence/ tardiness is justified), the unjustified and unauthorized abandonment of one’s position, the refusal to provide a valid medical certificate upon request, or the falsification or fabrication of a medical certificate.Where absences are repeated or combined with other violations, the sanction will be more severe.Note that, in the absence of specific clauses in the collective agreement on this subject, an absence for “personal reasons” is not justified.JUSTIFIED ABSENTEEISMJustified absenteeism is involuntary. In such a case, the employer’s management of the employee will be administrative rather than disciplinary in nature.For example, an employee may be absent on numerous occasions, all of which may be justified, particularly if the absences have been authorized by the employer for a valid reason (e.g., health problems), or were permitted by statute (Act Respecting Industrial Accidents and Occupational Diseases,3 Act Respecting Labour Standards4) or the collective agreement.This type of absenteeism can sometimes justify dismissal. For this to be the case, the following five (5) elements must generally be demonstrated:1) The absenteeism is excessive and lasts for a significant amount of time.In this respect, it is useful to compare the employee’s rate of absenteeism with the average rate of absenteeism within the company. While there is no magic number, an absenteeism rate fluctuating at a minimum of about 20% over a period of three (3) or four (4) years can be considered excessive.52) Little likelihood of improvement in the foreseeable future.If the employee’s absenteeism is primarily or entirely due to a single cause (e.g., chronic illness), medical evidence will be necessary and must address the prognosis, among other things. The instructions to the medical expert must be well-written so that he or she can provide a complete and substantiated opinion. Where the absence is due to multiple causes, such evidence is not required.3) The absenteeism has consequences for the business.It is advisable to document the effects of the absenteeism both on the workplace (e.g., work overload) and on the costs that it entails (e.g., overtime, new hires).4) The employee is informed of the problem and of the risk of losing his or her job.It is appropriate to meet with the employee to ensure that he or she is aware of, and to require him or her to resolve, the absenteeism problem. The employee should be informed that his or her employment may be terminated if his or her attendance does not improve.5) The employee has a disability or “handicap”6 and the employer is not able to accommodate him without undue hardship.If the employee has a “handicap” within the meaning of the Charter of Human Rights and Freedoms,7 the duty to accommodate will be triggered. For example, physical musculoskeletal limitations, alcoholism, drug addiction, bipolar illness, depression, and anxiety may all constitute “handicaps”. The employer will therefore have a duty to attempt to find a reasonable accommodation. The employee, his union, where applicable, and his colleagues must also be involved in this process. However, the employer will be relieved of its obligation if it can demonstrate that it is not possible to accommodate the employee without experiencing undue hardship. Undue hardship may result from the impact of the accommodation on other workers or from the significant costs the business may incur given its size and financial resources.MEDICAL CERTIFICATEThe employer is not entitled to require medical certificates on a systematic basis, but rather must have a legitimate interest and valid reasons for doing so. Such reasons may include: repeated or chronic absenteeism; where questionable reasons are given for the absence; to evaluate an employee’s ability to return to work following a prolonged absence; to evaluate the employee’s ability to perform the work where there are valid reasons for doubting his or her ability (e.g. repeated falls, disorientation, blackouts).To be valid, the medical certificate must be signed by a physician and must refer to the specific dates of the absences. A mere statement that the employee was seen by a physician is insufficient.8 The employer may require a detailed medical certificate indicating a diagnosis.9CONCLUSIONWe invite you to clearly inform your employees of the company’s expectations as they relate to attendance ( punctuality, notice of absences or tardiness prior to the beginning of one’s shift, compliance with the work schedule, and the obligation to remain at one’s station for the entire shift, etc.). Employees should also be informed that they may be required not only to justify their absences, but also to provide a valid medical certificate if they cite their health as the reason for their absence.________________________________1 This text was taken from a presentation on the management of absenteeism given by Carl Lessard and Marie-Hélène Jolicoeur on November 13, 2013 at the offices of Lavery de Billy. It is not a legal opinion, nor is it comprehensive in its coverage of this issue, providing only an overview of the basic principles that apply.2 Article 2085 of the Civil Code of Québec, SQ, 1991, c. 64.3 CQLR, chapter A-3.001.4 CQLR, chapter N-1.1.5 For example: Syndicat des métallos, section locale 7625 et Dyne-A-Pak inc., D.T.E. 2012T-212.6 Section 10 of the Charter of human rights and freedoms, CQLR, chapter C-12.7 CQLR, chapter C.-12.8 Aliments Cargill et Travailleuses et travailleurs unis de l’alimentation et du commerce, section locale 500 (TUAC), D.T.E. 2010T-817 (T.A.).9 Syndicat des travailleuses et travailleurs du Pavillon St-Joseph (CSN) et Pavillon St-Joseph, D.T.E. 2010T 754 (T.A.), upheld by the Superior Court (2011 QCCS 3426).
We are pleased to announce that Lavery has once again been recognized in the 2024 edition of Chambers Canada in the following sectors: Corporate/Commercial (Québec, Band 1, Highly Regarded) Employment and Labour (Québec, Band 2) Energy and Natural Resources: Mining (Nationwide, Band 3) Intellectual Property (Nationwide, Band 4) These recognitions are further demonstration of the expertise and quality of legal services that characterize Lavery’s professionals. Five lawyers have been recognized as leaders in their respective areas of practice in the 2023 edition of the Chambers Canada guide. Areas of expertise in which they are recognized: René Branchaud : Energy and Natural Resources: Mining (Nationwide, Band 5) Nicolas Gagnon : Construction (Nationwide, Band 3) Marie-Hélène Jolicoeur : Employment and Labour (Québec, Up and Coming) Guy Lavoie : Employment and Labour (Québec, Band 2) Sébastien Vézina : Energy and Natural Resources: Mining (Nationwide, Band 5) Since 1990, Chambers and Partners' ranks the best law firms and lawyers across 200 jurisdictions throughout the world. The lawyers and law firms profiled in Chambers Canada are selected following through a rigorous process of research and interviews with a broad spectrum of lawyers and their clients. The final selection is based on clearly defined criteria such as the quality of client service, legal expertise, and commercial astuteness. About Lavery Lavery is the leading independent law firm in Quebec. Its more than 200 professionals, based in Montréal, Quebec, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Quebec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm’s expertise is frequently sought after by numerous national and international partners to provide support in cases under Quebec jurisdiction.
Lavery is pleased to announce that 68 of its lawyers have been recognized as leaders in their respective fields of expertise by The Best Lawyers in Canada 2024. The following lawyers also received the Lawyer of the Year award in the 2024 edition of The Best Lawyers in Canada: Josianne Beaudry : Mining Law Jules Brière : Administrative and Public Law Bernard Larocque : Professional Malpractice Law Carl Lessard : Workers' Compensation Law Consult the complete list of Lavery's lawyers and their fields of expertise: Josianne Beaudry : Mergers and Acquisitions Law / Mining Law Laurence Bich-Carrière : Class Action Litigation / Contruction Law / Corporate and Commercial Litigation / Product Liability Law Dominic Boivert : Insurance Law Luc R. Borduas : Corporate Law / Mergers and Acquisitions Law Daniel Bouchard : Environmental Law Elizabeth Bourgeois : Labour and Employment Law (Ones To Watch) René Branchaud : Mining Law / Natural Resources Law / Securities Law Étienne Brassard : Equipment Finance Law / Mergers and Acquisitions Law / Real Estate Law Jules Brière : Aboriginal Law / Indigenous Practice / Administrative and Public Law / Health Care Law Myriam Brixi : Class Action Litigation Benoit Brouillette : Labour and Employment Law Richard Burgos : Mergers and Acquisitions Law / Corporate Law / Commercial Leasing Law / Real Estate Law Marie-Claude Cantin : Insurance Law / Construction Law Brittany Carson : Labour and Employment Law Karl Chabot : Construction Law (Ones To Watch) Chantal Desjardins : Intellectual Property Law Jean-Sébastien Desroches : Corporate Law / Mergers and Acquisitions Law Raymond Doray : Privacy and Data Security Law / Administrative and Public Law / Defamation and Media Law Christian Dumoulin : Mergers and Acquisitions Law Alain Y. Dussault : Intellectual Property Law Isabelle Duval : Family Law Philippe Frère : Administrative and Public Law Simon Gagné : Labour and Employment Law Nicolas Gagnon : Construction Law Richard Gaudreault : Labour and Employment Law Julie Gauvreau : Intellectual Property Law / Biotechnology and Life Sciences Practice Audrey Gibeault : Trusts and Estates Caroline Harnois : Family Law / Family Law Mediation / Trusts and Estates Marie-Josée Hétu : Labour and Employment Law Édith Jacques : Energy Law / Corporate Law / Natural Resources Law Marie-Hélène Jolicoeur : Labour and Employment Law Isabelle Jomphe : Advertising and Marketing Law / Intellectual Property Law Guillaume Laberge : Administrative and Public Law Jonathan Lacoste-Jobin : Insurance Law Awatif Lakhdar : Family Law Bernard Larocque : Professional Malpractice Law / Class Action Litigation / Insurance Law / Legal Malpractice Law Éric Lavallée : Technology Law Myriam Lavallée : Labour and Employment Law Guy Lavoie : Labour and Employment Law / Workers' Compensation Law Jean Legault : Banking and Finance Law / Insolvency and Financial Restructuring Law Carl Lessard : Workers' Compensation Law / Labour and Employment Law Josiane L'Heureux : Labour and Employment Law Despina Mandilaras : Construction Law / Corporate and Commercial Litigation (Ones To Watch) Hugh Mansfield : Intellectual Property Law Zeïneb Mellouli : Labour and Employment Law / Workers' Compensation Law Isabelle P. Mercure : Trusts and Estates Patrick A. Molinari : Health Care Law Jessica Parent : Labour and Employment Law (Ones To Watch) Luc Pariseau : Tax Law / Trusts and Estates Ariane Pasquier : Labour and Employment Law Jacques Paul-Hus : Mergers and Acquisitions Law Audrey Pelletier : Tax Law (Ones To Watch) Hubert Pepin : Labour and Employment Law Martin Pichette : Insurance Law / Professional Malpractice Law / Corporate and Commercial Litigation Élisabeth Pinard : Family Law François Renaud : Banking and Finance Law / Structured Finance Law Judith Rochette : Insurance Law / Professional Malpractice Law Ian Rose FCIArb : Director and Officer Liability Practice / Insurance Law / Class Action Litigation Sophie Roy : Insurance Law (Ones To Watch) Chantal Saint-Onge : Corporate and Commercial Litigation (Ones To Watch) Ouassim Tadlaoui : Construction Law / Insolvency and Financial Restructuring Law Bernard Trang : Banking and Finance Law / Project Finance Law (Ones To Watch) Mylène Vallières : Mergers and Acquisitions Law / Securities Law (Ones To Watch) André Vautour : Corporate Governance Practice / Corporate Law / Information Technology Law / Intellectual Property Law / Technology Law / Energy Law Bruno Verdon : Corporate and Commercial Litigation Sébastien Vézina : Mergers and Acquisitions Law / Mining Law Yanick Vlasak : Corporate and Commercial Litigation / Insolvency and Financial Restructuring Law Jonathan Warin : Insolvency and Financial Restructuring Law These recognitions are further demonstration of the expertise and quality of legal services that characterize Lavery’s professionals. About Lavery Lavery is the leading independent law firm in Quebec. Its more than 200 professionals, based in Montréal, Quebec, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Quebec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm’s expertise is frequently sought after by numerous national and international partners to provide support in cases under Quebec jurisdiction.