Reversing a decision of the Tribunal administratif du travail (“TAT”), the Superior Court of Québec confirmed that the employer will meet the burden of demonstrating undue hardship, thus justifying a non-discriminatory administrative dismissal, where there is no evidence that the employee will be able to return to work in the foreseeable future.1 The facts On June 19th, the Superior Court2 quashed a decision rendered by Administrative Judge Bernard Marceau of the TAT on November 22, 2016.3 In that decision, the TAT struck down a municipal resolution dismissing the City of Forestville’s director of public works due to poor health which had prevented him from working for over 21 months. The decision The Superior Court applied the standard of reasonableness and concluded that the administrative judge’s decision was unreasonable. The Court noted that the administrative judge had correctly identified the applicable legal principle when he wrote that [TRANSLATION] “with respect to the right to administratively dismiss the complainant due to a prolonged absence, the case law requires evidence of an inability to perform one’s work in the near or foreseeable future.”4 That being said, the administrative judge committed two errors. First, the Court held that the City did not have to introduce medical evidence establishing that the employee was unfit to return to work. The undisputed evidence before the administrative judge was sufficient. Even the employee’s attending physician concluded that the employee was incapable of returning to work in the near future.5 The second error in law identified by the Court involved the application of the notions of “accommodation” and “undue hardship”. It has been established in the case law that there are limits to the employer’s duty to accommodate where an employee is unable to return to work in the foreseeable future and is incapacitated for an indeterminate period of time.6 It is also recognized that the employer will have established undue hardship where an employee cannot return to work in the foreseeable future.7 Conclusion The Superior Court held that the fact that the employee could not provide evidence that he would be able to return to work in the foreseeable future constituted undue hardship for the City. The Court therefore held that the dismissal was not discriminatory and that the only reasonable conclusion was to uphold the decision of the municipal council terminating the employment.8 Ville de Forestville c. Tribunal administratif du travail, 2017 QCCS 3999, at para 55. Ville de Forestville c. Tribunal administratif du travail, 2017 QCCS 3999. Gravel c. Forestville (Ville de), 2016 QCTAT 6666. Ville de Forestville c. Tribunal administratif du travail, 2017 QCCS 3999, at paras 35 and 40. Ibid. at paras 43-46. Ibid. at para 49. Ibid. at para 50. Ibid. at para 57.
- Québec, 2018
Céleste Brouillard-Ross is an Associate with the Litigation group of the firm. She completed her Bachelors of Law degree from Université de Montréal and joined Lavery as a student in spring 2016.
Céleste’s practice focuses primarily on insurance law and product, professional and civil liability.
In her role, she leads many diverse cases, representing professionals, insurers and various companies before all levels of Quebec’s civil courts, both as plaintiffs and defendants. Her practice has led her to participate in many settlement conferences that have resulted in out-of-court settlements.
Prior to law school, Céleste studied History and Women’s Studies at McGill University. Céleste was highly involved in her university’s student life and was a member of several committees, including the Graduation Committee. She is also very active in her community with a focus on tutoring students from first-generation immigrant families.
Concurrent to her legal studies, Céleste also completed an internship at the Canadian Federal Court in Montreal where she worked alongside numerous judges.
Professional and community activities
- PROMIS, Volonteer tutor, 2015
- LL.B., Université de Montréal, 2016
- Minors in History and Women’s studies, McGill University, 2013
Lavery is pleased to announce that it has hired five of its articling students as associates. Alexandra Belley-McKinnon has joined the Litigation and Conflict Resolution group. She holds degrees in common law and civil law from McGill University as well as an LL.M. in International Law at the Graduate Institute of International and Development Studies in Geneva, Switzerland. Céleste Brouillard-Ross has joined the Litigation and Conflict Resolution group. Prior to law school, Céleste studied History and Women’s Studies at McGill University. Félix Germek-Michaud has joined the Labour and Employment Law group. He completed a Bachelor in Business Administration and a Bachelor of Law with honours from the Université du Québec à Montréal. Pierre-Olivier Valiquette has joined the Business Law group. He holds a Bachelor of Civil Law (B.C.L.) and a Bachelor of Law (LL.B.) from McGill University. Felicia Yifan Jin has joined the Business Law group. She completed her bachelor’s degree in civil law at the Université de Montréal and two internships in the Chinese legal system, one within the firm Tiantong & Partners, and the other at Guangdong International Business Law Firm. “We are very proud to welcome talent like Daphnée, Charles, Chantal, Yaoqi and Andrée-Anne into the Lavery family. They have distinguished themselves by their quality of work, dedication and ongoing pursuit of excellence,” commented Loïc Berdnikoff, Director of Professional Development.