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  • Managing Employment Injuries in the Age of COVID‑19

    The management of employment injury claims has not halted due to the current pandemic. Not only are new employment injuries taking place and claims being filed, ongoing claims are still being processed.  Managers must be vigilant in order to limit the financial impact of the pandemic with respect to employment injury claims. They can act in one of two (2) ways: Investigating the circumstances in which the worker contracted COVID-19 in order to determine whether it can be considered an employment injury; Monitoring employment injury cases to identify the impact of the pandemic on the way cases are treated to then try to obtain a reduction in financial consequences for the employer by an assignment of costs. Can COVID-19 be considered an employment injury? Although a worker infected with COVID-19 is at liberty to file an employment injury claim, they are responsible for proving that they contracted the disease or came into contact with the virus due to or in the course of their work. According to the current laws and jurisprudence, a COVID-19 diagnosis does not trigger the application of any legal presumption facilitating the acceptance of a worker’s claim under either the category of occupational disease or that of industrial accident. Helpful tip: If one of your employees has contracted COVID-19, investigate the origin of the infection. Ask the following questions and document the answers you receive: Has the worker travelled recently? Where and when? When did they return from abroad? Has one of their loved ones recently been diagnosed with COVID-19? Have one or more colleagues, clients or business partners contracted the disease? What symptoms did they experience, and when did they begin experiencing them? What was their schedule and who did they work with in the days before they began experiencing symptoms? Why do they believe they contracted the disease at work? What hygiene, preventive and protective measures and distancing did they use in the workplace? Can employers apply for an assignment of costs due to COVID-19? In terms of employment injuries, the pandemic can have many consequences, such as treatments and temporary assignments of work being temporarily interrupted and medical assessments and examinations by the Bureau d’évaluation médicale (BEM) being cancelled or postponed for an indefinite period. This situation will inevitably prolong the period during which employment injury benefits are paid, potentially significantly in some cases. Employers could apply for an assignment of costs for these claims in order to reduce the financial impact of the pandemic by demonstrating, for example, that the treatments necessary to consolidate the worker’s injury were suspended due to the pandemic, delaying consolidation or increasing the consequences o permanent impairment. A pandemic the size of COVID-19 is probably very much outside the scope of risks most employers generally have to face. When applying for an assignment of costs due to “undue burden”1, the employer will need to demonstrate that the consequences stemming from the pandemic such as delayed consolidation or more substantial permanent consequences represent a significant proportion of the costs attributable to the employment injury.  Helpful tips: If you have workers who are currently receiving income replacement benefits, find out whether their treatments or medical care have been interrupted due to the pandemic, if they have had medical or surgical appointments cancelled, etc. Document this information. The impact of these events on the cost of the claim can be documented retrospectively. Keep in mind, however, that applications for an assignment of costs due to “undue burden” must be submitted within the time limit established by law, as interpreted by jurisprudence2. The members of our Labour and Employment team are available to answer any questions you may have about occupational health and safety measures you are considering or the solutions you are seeking given the realities of your organization and its activities.   Section 326 of the Act respecting Industrial Accidents and Occupational Diseases (“AIAOD”). Section 326 of the AIAOD states that the application must be made in writing within the year following “the date of the accident”, and must include an explanation of the reasons for the application. However, the Court of Appeal has interpreted this time limit as being able to start from the day the right to the exception begins in Commission de la santé et de la sécurité du travail v. 9069-4654 Québec inc., 2018 QCCA 95 (known as the “Supervac 2000” case), as has the majority of the Tribunal administratif du travail jurisprudence that followed.

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  • Amendments to the Pay Equity Act: What are the changes to expect?

    On April 10, 2019, came into force several long-awaited amendments to the Pay Equity Act, which are mainly intended to improve the pay equity audit process. These amendments follow last year’s Supreme Court of Canada ("SCC") judgment1. We discussed these judgments in a previous bulletin. It should be recalled that the SCC, in its decision of May 10, 2018, essentially declared certain provisions of the Pay Equity Act unconstitutional, stating that: Compensation adjustment, in the context of a pay equity audit conducted every five years, must be retroactive; The information to be included in the posting of the audit results was insufficient to allow employees to properly understand the process followed by the employer during the audit and did not include the date on which inequity manifested itself. In fact, the amendments to the Pay Equity Act go much further than most of the adjustments required by the Supreme Court of Canada, despite public consultations and numerous comments from employer groups in this regard. The following is a brief summary of the most significant amendments to the Pay Equity Act that your organization should review in order to quickly ascertain their repercussions: 1. Pay equity audit: Events leading to adjustments Compensation adjustments, following the pay equity audit process, will now have to be paid retroactively, back to the date of the event leading to the adjustment. The Pay Equity Act does not provide any clarification as to the notion of the event leading to the adjustment. In practice, the employer will therefore have to examine the events that have affected pay equity on a case-by-case basis. One can imagine that this amendment will not be easy to apply and that in the case of several events and adjustments, retroactivity will have to be applied on different dates. The retroactive payment required as a result of the pay equity audit will be payable in a lump sum. However, in some cases, for persons still employed by the employer, this lump sum may be spread over several payments, after consultation with the pay equity audit committee or the certified union representing employees, as the case may be. In addition, the employer must indicate the date of the event on the posting of the audit results. With respect to the date on which an employer must perform the pay equity audit, the Pay Equity Act now provides that the five (5) year time limit is established from the first posting and not the second posting, whether for an initial pay equity exercise (through a program or not) or a previous audit. 2. Pay equity audit: Participation of employees and certified associations Another major change is the introduction of an employee participation process in cases where the initial exercise was conducted by a committee or where there is at least one certified union representing employees. One of the consequences of this participation process is that the employer is obliged to provide information about the audit work, including written documents. The Pay Equity Act provides that persons with access to this information are required to maintain its confidentiality. The employer must also institute consultation measures so that the certified union or employees can ask questions and submit comments. The employer also has an obligation to allow employees to meet at the workplace to determine who will be designated in the participation process. In any event, employees are deemed to be at work for the purposes of this process. Finally, the employer will have to include questions or comments submitted as part of the participation process in the posting and show how they were considered in the audit. 3. Retention of documents Documents used to achieve pay equity or to perform the pay equity audit must now be kept for a period of six (6) years instead of five (5). In the case of a complaint or investigation, the employer is required to keep these documents until a final decision is made or until the investigation is closed. 4. End of posting notices Good news: In order to somewhat streamline the posting process, it will no longer be necessary for employers to issue a notice stating that a pay equity posting is in progress. 5. Creation of a complaint form The Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST") has created a complaint form that employees will have to use to file a complaint. This complaint must briefly state the reasons for which it is being filed. 6. Grouping complaints and conciliation The Pay Equity Act now provides the possibility for the CNESST to group complaints if they have the same juridical basis, are based on the same facts or raise the same points of law, or if circumstances permit. In addition, when more than one certified union represents employees in the same job class and one of these unions files a complaint, the process requires the appointment of a conciliator. In the case of a group of complaints or a complaint filed by a certified union in an enterprise, an employee who has also filed a complaint must receive a copy of the agreement that has been reached, and this employee may refuse to be bound by this agreement. In the event that no agreement has been reached, the Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST") must then determine the measures that must be taken to ensure that pay equity is achieved or maintained. Transitional measures Second postings related to a pay equity audit made prior to April 10, 2019, continue to be governed by the previous provisions of the Pay Equity Act. However, in the case of a first posting made before April 10, 2019, the second posting must include the date of each event leading to an adjustment, in accordance with the changes made: A period of 90 days (until July 9, 2019) is allowed to make this second posting. Note: Adjustments resulting from this second posting will be due as of the date of the event that generated these adjustments and will therefore be retroactive according to the ministère du Travail, de l’Emploi et de la Solidarité sociale. An employer that must issue a posting related to the pay equity audit by July 9, 2019, is not required to implement a participation process under the new provisions of the Pay Equity Act, even if a pay equity committee had been formed when pay equity was achieved or if a certified union represents all or some of the employees concerned. If an employer was authorized by the CNESST before February 12, 2019, to conduct its pay equity audit after April 10, 2019, and, if not for that authorization, the posting of the audit would have been done before April 10, 2019, then the previous provisions of the Pay Equity Act will apply. For pay equity audits to be completed by April 10, 2020, the new reference dates for calculating audit periods will only apply as of the next pay equity audit. What employers should do Right now? The Quebec government had to amend the Pay Equity Act to reflect the SCC's decision. These amendments will give rise to a number of practical difficulties that employers will have to anticipate. Pay equity audit Although the maintenance of pay equity must be audited every five years, we believe that employers will have to institute a mechanism to periodically identify major changes within the company that could lead to pay inequities for predominantly female job classes. It will be necessary to keep a history of these events in order to be able to determine which ones have led to adjustments, if any, when posting the audit results. In any case, a history of the work should be kept, whether or not it was done by a committee, in order to ensure a certain continuity within the enterprise in the event of a change of manager. Since it requires continuous monitoring of the payline to comply with legal requirements, the audit process itself will become less onerous. Employee participation With respect to employers now required to institute an employee participation process, it will also be prudent to have employees who participate in the audit process sign a confidentiality agreement and make them aware of the sensitive nature of the information to which they have access. Posting Employers will have to ensure adequate disclosure of information in the postings, which will enable better understanding of the audit results and potentially minimize the risk of complaints. Training and communication It will be essential to train managers on pay equity in order to ensure a good understanding of the legislation and avoid inconsistencies in the implementation of the audit process. In short, although pay equity is a value that has reached a point of consensus in our society, the fact remains that the law imposes a restrictive and formal framework that will have to be put in place. Our Labour and Employment team can provide you with valuable support in this exercise and we invite you to contact us.   Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17

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  • “ Don't work here! ”: Employers' denigration may prove very costly

    The Québec Superior Court has ordered a former employee to pay her employer $11,000 in moral and punitive damages because she posted defamatory comments about the company on 1. In doing so, the employee contravened her loyalty obligations and the confidentiality and non-disparagement undertakings that she had subscribed to when her employment was terminated. Expressing dissatisfaction on social media has become commonplace. People can now publicly decry situations that upset them, and, in some cases, doing so can attract unexpected media attention. Hence, employers feel vulnerable to comments that their employees or former employees may publish on social media. It is therefore prudent for them to include clear and precise non-disparagement clauses in employment contracts and termination agreements, and to remind employees of these obligations in internal company policies. Background The employee's position was abolished in January 2012, and, as part of her termination conditions, the employer, Digital Shape Technologies Inc. (hereinafter “DST”), offered her severance pay in consideration for signing a termination and release agreement that included a confidentiality clause and a non-disparagement clause with respect to DST. However, between April 15 and 17, 2012, the employee posted three comments on In these comments, she, among other things, described a toxic work environment with a turnover rate of about 80% where social interaction was discouraged, as well as an employer that did not provide the necessary tools to do the work, repeatedly dismissed employees without just cause, hired private investigators to uncover what was said in meetings between employees and former employees, and accessed employees' personal social media accounts. After reviewing these posts and discovering the identity of the author, Digital Shape Technologies Inc. (“DST”) and its CEO filed a lawsuit against the employee claiming $150,000. Loyalty and contractual undertakings In its analysis, the Court reiterated the obligations of loyalty and discretion provided for in the Civil Code of Québec in matters of employment contracts. An employee’s obligation of loyalty to his or her employer persists after the employment relationship ends and includes a prohibition on injuring an employer's reputation, which inevitably leads to a certain limitation of the right to freedom of expression. In this case, this limitation on freedom of expression had to be taken into account to an even greater extent as the employee had contractually undertaken not to make comments that could harm DST’s reputation or to disparage its management, services or products. Although the employee claimed that the non disparagement clause violated her freedom of expression - a fundamental right protected under the Charter of Human Rights and Freedoms – the Court determined that she had validly waived her freedom of expression with respect to her former employer. In this case, the non disparagement clause was unambiguous, using clear and precise terms to define the scope of the undertaking. Considering the legal and contractual obligations that bound the employee to Digital Shape Technologies Inc. (“DST”), the Court found her contractually at fault and liable. Defamation The Court also reviewed the employer's recourse under the defamation 2 rules and concluded, after a thorough analysis of the evidence, that even if the employee had not signed a non disparagement undertaking, she had made factual statements that were false, unfounded, distorted or exaggerated. She thus wrongfully injured the employer's reputation. Damages The Court pointed to the difficulty in quantifying damages in a defamation situation, Digital Shape Technologies Inc. (“DST”) being unable to directly prove financial losses, missed business opportunities or missed candidates that may have been put off by the reading the employee's comments. Based on jurisprudential parameters, which establish a range between $10,000 and $30,000 in the case of a legal person, the Superior Court believed that a sum of $10,000 in moral damages was appropriate given the gravity of the acts and their intentional nature, as well as the amount of time the posts could be read, the fact that they were only minimally viewed and the employee's cooperation after being served with a formal demand. The Court was also of the view that awarding punitive damages was justified as the evidence revealed that the employee had intentionally harmed DST’s reputation. In light of the employee's financial situation, she was ordered to pay $1,000 in punitive damages. What employers should do The publication of defamatory content against an employer or former employer may constitute a civil fault giving rise to the right to compensation for the damages suffered. The decision in Digital Shape Technologies, however, shows that it would be prudent for employers to require that employees agree to be bound by non disparagement covenants, particularly in employment contracts, termination employment/release agreements upon termination of employment, as well as internal policies regarding the use of technology and the internet, and so forth. Doing so may not only discourage the publication of defamatory remarks, but also make it easier for employers to seek compensation in the event of breaches. A few clicks can be expensive and cause all kind of inconvenience. A good reason to think twice before hitting “send”.   Digital Shape Technologies inc. c. Walker, 2018 QCCS 4374 Defamation consists in the communication of spoken or written remarks that cause someone to lose in estimation or consideration, or that prompt unfavourable or unpleasant feelings towards him or her. For a court to conclude that defamatory statements constitute a fault for which the person who disseminated them is legally liable, it must find that the person: 1) knew that the unpleasant or unfavourable statements about the other were false, or 2) communicated unpleasant or unfavourable information about the other that he or she ought to have known to be false, or 3) made unfavourable but true comments about the other without any valid reason for doing so.

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  • Employers, the VRSP: Ring any Bells?

    On July 1, 2014, most of the provisions of the Voluntary Retirement Savings Plans Act1 (the “VRSP Act”) came into effect. At the time, this raised questions in the minds of numerous employers about their obligations under this new law. Since a first group of employers had until December 31, 2016 to comply with certain obligations, we are providing you with a summary of the main obligations of employers under the VRSP Act. But before anything else: what is a VRSP? It is a group retirement savings plan set up and administered by an authorized administrator and governed by the VRSP Act. VRSPs are designed to have a low cost in order to encourage saving for retirement. Which employers are covered by the VRSP Act? Any employer that has an establishment in Québec and five or more “eligible employees”. What is an “eligible employee”? According to the VRSP Act, it is essentially an employee2 who: is 18 or more years of age; has at least one year of uninterrupted service;3 and performs his work: - in Québec; or - partially in Québec and outside Québec for an employer having an establishment in Québec; or - outside Québec but who has his domicile or a residence in Québec and whose employer is located in Québec. If an employer does not have five or more eligible employees, it must ensure, on December 31st of every year, that it still does not have five or more eligible employees. If an employer has five or more eligible employees, it has the obligation to offer a VRSP and to automatically enroll all of its eligible employees therein. But! The employer is not required to enroll any eligible employee in the VRSP if the employee: has the opportunity to contribute, through payroll deductions, (whether or not he/she actually does so) to a designated registered retirement savings plan (“RRSP”) or a designated tax-free savings account (“TFSA”) set up by the employer; OR belongs to a category of employees who benefit from a registered pension plan,4 i.e. a pension plan.5. When must the VRSP be offered? The deadline by which an employer must offer a VRSP and automatically enroll its eligible employees depends on the number of eligible employees on certain given dates. The deadline for employers with 20 or more eligible employees as of June 30, 2016 was December 31, 2016. The deadline for employers with 10 or more eligible employees as of June 30, 2017 is December 31, 2017. Note that the deadline has yet to be determined for employers with 5 to 9 eligible employees, but it will not be before January 1, 2018. Choose a VRSP set up by an authorized administrator and give notice to the employees An employer who is required to offer a VRSP must choose from among those set up by the authorized administrators. A list of authorized administrators who have set up a VRSP is available on the website of Retraite Québec.6 Once it has made its choice, the employer must, no less than 30 days before offering the chosen VRSP, notify its eligible employees7 in writing that: it intends to join that VRSP; the eligible employees will be automatically enrolled in the VRSP, but will be able to opt out; each eligible employee may choose the contribution he/she wishes to make to the VRSP This written notice must also contain all the other information required by the VRSP Act. Once the employer has joined the chosen VRSP, it has 30 days to enroll its employees with the VRSP. The VRSP administrator will then send a written notice to the enrolled employees, by the statutory deadline, containing the prescribed information. Is the employer required to contribute to the VRSP? Under the VRSP Act, the employer has no obligation to contribute to the VRSP on behalf of its enrolled employees. If it chooses to contribute, it may subsequently change its contribution, subject to any contrary clause contained in a collective agreement or individual employment contract. To change its contribution, the employer must give written notice to the employees concerned and to the VRSP administrator. If the amendment has the effect of reducing its contribution, it cannot take effect before the 30th day following the date written notice is given. Other obligations of the employer Employers who must offer a VRSP also have other obligations under the VRSP Act. The following is a non-exhaustive list of those obligations.8 Opting out of or not contributing to the VRSP Employees may opt out of the VRSP offered by their employer by advising in writing of their intention to do so within the time period specified in the VRSP Act. In such a case, the employer must retain this written notice for the entire duration of the employee’s employment. The employer will also be required to verify periodically whether the employee wishes to change his/her mind and enroll in the VRSP. This must be carried out in the month of December, every two years following the employee’s decision to opt out. If an employee has decided to opt out of the VRSP, the employer must also give the VRSP administrator written notice within 30 days of its receipt of the written notice from the employee. Pursuant to the regulation, enrolled employees may set their contribution rate to 0%.9 When an employee does so, the employer must periodically give them the opportunity to start making contributions again. The employer must do so in the month of December, every two years following the date on which the contribution rate was set to 0%. Deduction and payment of contributions The employer must deduct the contributions of each employee who is a member of the VRSP from his/her pay cheque10 and pay it to the VRSP within the time period specified in the statute, i.e. no later than the last day of the month following the deduction thereof (for example, contributions collected in April 2017 must be paid into the VRSP by May 31, 2017).11 Should the employer not pay the contributions to the VRSP within the requisite time period, the employer will be required to pay interest at the rate and according to the method specified in the regulation.12 Access to documents The employer must make the following documents available to employees at their request and free of charge: the contract between the employer and the VRSP administrator and the VRSP’s annual statement and financial report. Submission of documents or information to the VRSP administrator The employer is required to provide the VRSP administrator with any documents or information it requests and which are necessary to comply with the VRSP Act. Termination of employment Where an employee’s employment is terminated, the employer must notify the VRSP administrator thereof within 30 days. Contravention of the VRSP Act Different bodies are responsible for applying the VRSP Act, including Retraite Québec and the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”). Moreover, the CNESST oversees the employer’s compliance with its obligation to offer a VRSP to its eligible employees. In the event of a violation of the VRSP Act, the employer may be subject to penal sanctions, among other things. Indeed, the VRSP Act states that if an employer fails to pay a contribution to the VRSP by the specified deadline or to offer a VRSP within the time period prescribed by law, it commits an offence and may be liable to a fine ranging from $500 to $10,000. Fines are doubled in the event of a subsequent conviction. Where the employer violates any of its other obligations under the VRSP Act, it commits an offence and may be liable to a fine of $600 to $1,200, which, again, is doubled in the event of a subsequent conviction. In closing, we note that, as reported by some recently published articles, it appears the CNESST will only intervene if a complaint is received. If you were supposed to offer a VRSP by no later than December 31, 2016 and you have not yet done so, you should act quickly. However, if a complaint has been filed with the CNESST, you could be subject to prosecution and payment of a fine. R.S.Q., c. R-17.0.1. According to the definition contained in the Act respecting labour standards, R.S.Q., c. N-1.1. As defined in the Act respecting labour standards, R.S.Q., c. N-1.1. Within the meaning of this expression in the Income Tax Act, R.S.C. (1985) c. 1 (5th Supp.). Where an employer offers membership to all its eligible employees in a pension plan, or in an RRSP or TFSA (through source deductions on their salary), and some of them decide not to enroll, the employer is not obligated to offer a VRSP to the employees who have chosen not to enroll. Retraite Québec website (in french only). The employer is not required to give notice to the eligible employees who are excluded from the enrolling requirement, as previously noted. We note that the VRSP Act expressly states that the employer is not liable for any acts or omissions of the VRSP administrator. Regulation respecting voluntary retirement savings plans, R.S.Q., c. R-17.0.1, r. 3. It must begin collecting the contributions as of the first payroll following the 61st day after the requisite notice is given by the VRSP administrator to the enrolled employees once the employer has joined the VRSP. The VRSP administrator must inform the employer without delay of the date on which such notice was given. If the employer has chosen to contribute, it must pay its own contributions within the same time period as that specified for the payment of the employees’ contributions. We note also that until they are paid to the VRSP, the contributions and accrued interest, if any, are deemed to be held in trust by the employer, whether or not it has kept them separate from its own assets.

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  • Pay Equity Audits: The Québec Court of Appeal Renders its Decision

    On October 12, 2016, the Québec Court of Appeal rendered an important decision dealing with pay equity,1 confirming the decision rendered on January 22, 2014 by the Honourable Édouard Martin of the Superior Court invalidating sections 76.3 and 76.5 of the Pay Equity Act2 (hereinafter, the “Act”) governing pay equity audits and the payment of salary adjustments. In fact, since 2009, the Act requires that employers review their pay equity programs once every five years. However, it does not provide for retroactive payments if salary adjustments would otherwise be payable following such a review. Accordingly, employers do not compensate differences in wages that individuals who occupy positions in predominantly female job classes may have experienced during the five years preceding the audit. Furthermore, the posting of the results of the audit do not include the information necessary for employees to enforce their rights. The Court of Appeal ruled that these provisions of the Act are discriminatory and in violation of the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms given that they allow for the perpetuation of the inequality women in the workplace may have suffered prior to the audit by not retroactively compensating such inequality. Indeed, according to the Court of Appeal, the Act in its current form essentially permits the discrimination of employees in respect of their salary for a period of up to five years. In accordance with this decision, the Québec Government is required to make legislative amendments no later than next year and during that year long period, the existing provisions will continue to apply. Should the Government fail to amend the legislation in time, sections 76.3 and 76.5 will become inoperative. The Québec Government has 60 days to seek leave to appeal this decision before the Supreme Court of Canada. It will undoubtedly be important to closely follow this matter. Québec (Procureure générale) c. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2016 QCCA 1659. CQLR, c. E-12.001.

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  • Dismissal without cause under federal law: The Supreme Court of Canada closes the door

    The case of Wilson v. Atomic Energy of Canada Limited1 came to a close on July 14, 2016, when the Supreme Court of Canada (the “Supreme Court”) reversed a controversial Federal Court of Appeal decision in which it had been held that a dismissal without cause was not necessarily an “unjust dismissal” under the Canada Labour Code (“the Code”).2 The facts Wilson, a procurement supervisor, was terminated without cause after working for Atomic Energy of Canada Limited (AECL), Canada’s largest nuclear science and technology laboratory, for four and a half years. He had an unblemished disciplinary record at the time. AECL offered him close to the equivalent of six months of severance pay, but he declined, and then filed an unjust dismissal complaint under section 240(1) of the Code. AECL continued to pay him his salary for six months, so he received the severance pay he had initially been offered — an offer AECL considered generous. History of the proceedings The adjudicator, who was the first decision-maker to hear the case, had two questions before him: Could AECL lawfully terminate Wilson’s employment without cause? If so, was the severance pay sufficient so as to render the dismissal “just”? The adjudicator held that the payment of severance by the employer does not render moot the issue of whether a dismissal was just. Thus, an employer is not allowed to dismiss an employee without cause simply because he offered severance. AECL applied to the Federal Court for judicial review of this decision. It succeeded: The Federal Court reversed the earlier decision on the basis that it was unreasonable. The Federal Court held that an employer can dismiss an employee without cause, provided it provides pay in lieu of reasonable notice, as permitted by the common law. The Federal Court of Appeal upheld this decision. It held that the Code does not limit an employer’s right to dismiss an employee without cause at common law. It is worth noting that the Federal Court of Appeal reviewed the Federal Court’s decision based on the “correctness” standard of review. The parties’ positions Before the Supreme Court, AECL argued that an employer governed by federal law can dismiss an employee without cause, provided it pays the employee pay in lieu of reasonable notice as required by the common law. Wilson disagreed, arguing that such an employer cannot dismiss an employee without cause, and that severance pay does not make a dismissal “just.” Nonetheless, both parties agreed that the reasonableness standard was the applicable standard of review. The applicable standard of review Despite the parties’ agreement on the applicable standard of review, Justice Abella wrote a lengthy obiter on the issue. Expressing the view that the reforms brought by the Dunsmuir decision3 had not simplified the judicial review of administrative decisions, she argued that another administrative law reform is needed. She proposed to abolish the correctness standard, leaving only a reasonableness standard. However, her colleagues were not prepared to reform the standards of review applicable in administrative law matters. The Supreme Court’s decision The issue to be decided was whether the adjudicator’s interpretation of sections 240 to 246 of the Code was reasonable. A majority of the Justices held that it was. Analysing the drafting of the Code, the context in which the provisions were enacted, and the opinions of a majority of adjudicators and federal labour law scholars, the Court noted that the main objective of the provisions is to provide non-unionized employees with protection against dismissal without cause similar to the protection enjoyed by employees governed by a collective agreement. Furthermore, at common law, or, where applicable, the Civil Code of Québec, an employer may, unless a statutory provision prohibits it, dismiss an employee without cause as long as it provides the employee with pay in lieu of reasonable notice. For example, in Quebec and Nova Scotia, the law expressly provides that an employer cannot dismiss an employee without cause. In Quebec, section 124 of the Act Respecting Labour Standards4 states that an employee with more than two years of continuous service can only be dismissed for good and sufficient cause. Unlike the Federal Court of Appeal, the Supreme Court held that, in federal employment law matters, sections 240 to 246 of the Code completely replace the common law principles. To hold otherwise would lead to incoherent results: the remedies set out in sections 240 to 245 would be of no benefit if an employer could dismiss an employee without cause and simply pay the employee severance. Furthermore, it would be incongruous to allow the protections the Code makes available to employees to be superseded by an employer’s right to dismiss an employee without cause under common law principles. Accordingly, the only sensible conclusion is that the scheme set out in the Code completely ousts the common law, and that, under federal law, an employer cannot dismiss an employee without cause simply by paying the employee pay in lieu of reasonable notice. In its decision, the Federal Court of Appeal justified its use of the correctness standard based on the existence of conflicting case law on the question to be decided. Justice Abella addressed this subject with the following remarks: [60] O ut of the over 1,740 adjudications and decisions since the Unjust Dismissal scheme was enacted, my colleagues have identified only 28 decisions that are said to have followed the Wakeling approach … [References omitted.] Of these 28 decisions, 10 were rendered after this case was decided at the Federal Court and are therefore not relevant to determining the degree of “discord” amongst adjudicators before this case was heard … [References omitted.] [61] That leaves 18 cases that have applied the Wakeling approach. Three of them were decided by Adjudicator Wakeling himself. In other words, the “disagreement [that] has persisted for at least two decades” referred to by my colleagues consists of, at most, 18 cases out of over 1,700. What we have here is a drop in the bucket which is being elevated to a jurisprudential parting of the waters. [Emphasis added] Ultimately, the approach taken by the Federal Court of Appeal was completely set aside by the Supreme Court, given that the controversy in the case law was not as significant as it seemed. It is also worth noting that the Supreme Court underscored some important similarities between the federal principles and Quebec’s scheme prohibiting dismissal without just and sufficient cause: [65] It is worth noting that the Code’s scheme, which was enacted in 1978, was preceded by similar Unjust Dismissal protection in Nova Scotia in 1975, and followed by a similar scheme in Quebec in 1979. [References omitted.] Unlike other provinces, the Nova Scotia and Quebec schemes display significant structural similarities to the federal statute. They apply only after an employee has completed a certain period of service and do not apply in cases of termination for economic reasons or layoffs. Like the federal scheme, the two provincial ones have been consistently applied as prohibiting dismissals without cause, and grant a wide range of remedies such as reinstatement and compensation. [66] I t seems to me to be significant that in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), [...] [2010] 2 S.C.R. 61, interpreting the Unjust Dismissal provision in the Quebec Act, this Court concluded that “[a]lthough procedural in form”, the provision creates “a substantive labour standard” (para. 10). It would be untenable not to apply the same approach to the Unjust Dismissal provision in the federal Code, and instead to characterize the provision as a mere procedural mechanism. [Emphasis added] Finally, the dissent of Justices Moldaver, Côté and Brown is worth mentioning. Citing the rule of law, they conclude that the correctness standard applies, given the existence of conflicting lines of case law. In their view, the scheme created by sections 240 to 246 of the Code is simply another procedural mechanism available to employees who dispute the legality of their dismissal, and those provisions do not oust the common law. Such reasoning does not, in their view, deprive the Code’s remedies of their utility. Our view This Supreme Court decision puts a definitive end to the debate about dismissal without cause in federal law. In the future, employers can no longer seek to justify a dismissal without cause by paying severance, however generous it might be. This decision also marks an important convergence between the rules governing dismissal under Federal and Quebec law. 2016 SCC 29. R.S.C. 1985, c. L-2. Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. R.S.Q., c. N-1.1.

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  • The lack of conclusive scientific evidence is not necessarily a fatal bar to proving causation in relation to an occupational disease, according to the Supreme Court of Canada

    Last June 24th, the Supreme Court of Canada (the “Supreme Court”) rendered judgment in the case of British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority1 (“Fraser”). Briefly, this case involved seven laboratory technicians from the same hospital who had breast cancer. Each of them filed a claim for compensation under the Workers Compensation Act (the “Act”), alleging that their cancer was an occupational disease. In British Columbia, one of the applicable criteria for determining whether there is an occupational disease is that the work must have been of “causative significance” in the development of the illness. Background The claims for compensation were denied by the Workers Compensation Board (the “Board”). The workers appealed this decision to the British Columbia Workers’ Compensation Appeal Tribunal (the “Tribunal”). In a majority ruling, the Tribunal overturned the Board’s decision, holding that a decision-maker can infer causation based on “ordinary common sense”, even in the absence of scientific proof thereof. Following a reconsideration, a judicial review and an appeal, the Tribunal’s decision was set aside and, accordingly, the workers’ claims were dismissed. The workers then filed an appeal to the Supreme Court. Decision of the Supreme Court The Supreme Court considered two issues: (1) the jurisdiction of the Tribunal to reconsider its own decision, and (2) the evidence necessary to establish whether the work done as a laboratory technician was of “causative significance” in the development of the breast cancer. We will focus on the second issue in this newsletter. A majority of the Supreme Court held that a finding of causative significance could be made even in the absence of medical evidence positing or refuting the existence of a causal link. The scientific standards are more stringent than the legal standards for the purposes of establishing causative significance. Furthermore, the Tribunal can take into account other evidence in assessing whether a finding of causative significance can be made. In this case, the two scientific reports that were filed could not establish a link between the cancers and the lab technicians’ work. The Supreme Court nevertheless held that the Tribunal’s decision was reasonable because it was based on other evidence, particularly the higher incidence of breast cancer at the complainants’ workplace, and the fact that the determination of causative significance was a matter that was within the Tribunal’s expertise. It should be noted that Justice Côté gave a strong dissenting opinion on the issue of the evidence necessary to establish causative significance, and on the expertise of the Tribunal. For her, the Tribunal’s decision was based on mere speculation and failed to properly consider the criterion of causative significance. She also stressed, as the British Columbia Court of Appeal had also noted, that the Tribunal did not have expertise in medical matters. Impact in Quebec? Could the Administrative Labour Tribunal (“ALT”) be tempted to follow the principles laid down in Fraser? Firstly, it should be noted that there are several significant distinctions between the relevant law in Quebec and British Columbia. Indeed, British Columbia tribunals must apply the statutory concept of “causative significance” to determine whether a worker has suffered from an occupational disease, while the same concept is not present in the Quebec statute, i.e. the Act respecting industrial accidents and occupational diseases2 (the “AIAOD”). Where the presumption under section 29 of the AIAOD does not apply, section 30 of the same statute places the burden on the worker to show that his disease is “characteristic of” the work he was doing or “directly related to the risks peculiar to that work”.3 There is a further distinction. In its decision, the Supreme Court acknowledges section 250(4) of the British Columbian statute, which provides that where the evidence is “evenly weighted” between the worker and the employer, the Tribunal must resolve it “in a manner that favours the worker”. There is no equivalent under Quebec law. At best, the introductory section of the AIAOD states that [t]he object of this Act is to provide compensation for employment injuries and the consequences they entail for beneficiaries.4 This does not relieve the party on whom the burden of proof lies from establishing the facts he alleges on the balance of probabilities. Evidence of equal probative value on both sides should therefore lead to an adverse decision against the party who holds the burden of proof. Since section 30 of the AIAOD states that the burden is on the worker, he must adduce evidence with greater probative value than the evidence against him.5 If he fails to do so, his claim should be dismissed. Furthermore, both the dissenting judge in the Supreme Court and the British Columbia Court of Appeal cited the fact that the British Columbian Tribunal does not have expertise in medical matters. This principle originally emerged from the decision in Page v. British Columbia (Workers’ Compensation Appeal Tribunal),6 which has been referred to on numerous occasions in the British Columbian case law. In that case, the judge held that the Tribunal could not reject the uncontradicted medical expertise of a psychiatrist who had diagnosed a post-traumatic syndrome and substitute its own expertise — since it had no expertise. On the other hand, in Quebec, the occupational health and safety division of the ALT has medical expertise by virtue of its specialization.7. The ALT can even take judicial notice of [translation] “basic notions where they are generally recognized by the medical community, are not the subject of scientific controversy, do not require special expertise, and have been articulated many times in proceedings before the tribunal.”8 In addition, section 26 of the Regulation respecting evidence and procedure of the Administrative Labour Tribunal9 provides that the “Tribunal shall take judicial notice of generally recognized facts and of opinions and information within its field of specialization”. Furthermore, section 84 of the Act to establish the Administrative Labour Tribunal provides that medical assessors can assist at the hearings.10 In short, the scope of the ALT’s expertise is quite different from that of the British Columbian Tribunal. Additionally, the Supreme Court’s decision in Snell v. Farrel,11 which has been applied by various Quebec tribunals, including the Commission des lésions professionnelles (now the ALT), noted that the scientific standards for establishing a causal link are more stringent than the legal standards. Tribunals should not apply the stricter scientific standard, but rather, the standard of proof mandated by law. Therefore, a tribunal could infer a causal link between the work done and the occurrence of the disease even in the absence of conclusive positive or scientific evidence of the existence of such a link. In other words, a worker can prove his disease is “characteristic of” his work or “related to the risks peculiar to his work” without adducing expert evidence. Thus, in some cases, using similar reasoning to that in the Fraser case, decisionmakers have inferred a causal nexus based only on circumstantial evidence.12 2016 SCC 25. R.S.Q., c. A-3.001. Ibid, s. 30. Ibid, s. 1. Richard (Succession de) et Centre hospitalier Pierre Le Gardeur, 2011 QCCLP 3347, para. 430 and following. 2009 BCSC 493. Luc Côté and Catherine Dubé-Caillé, « La connaissance d’office et la spécialisation de la Commission des lésions professionnelles: de la théorie à la pratique », in S.F.C.B.Q., vol. 360, Développements récents en droit de la santé et sécurité au travail (2013), Cowansville, Éditions Yvon Blais, p. 137; Stéphanie Rainville, « La connaissance d’office de la Commission des lésions professionnelles, une revue de la jurisprudence récente », in Santé et sécurité au travail, vol 17, Cowansville, Éditions Yvon Blais, 2013, p. 225. Vereault et Groupe Compass (Eurest/Chartwell), 2006, no. AZ-50391746 (CLP); Cléroux et SIDO ltée, 2012 QCCLP 3847. R.R.Q., 1981, c. A-3.001, r. 12. R.S.Q., c. T-15.1, s. 84. [1990] 2 SCR 311. Tevan et Centre de réadaptation de l’Ouest de Montréal, [2000] No. AZ-00304563 (C.L.P.), Laverdière et Maison du Bingo de Lévis, 2010 QCCLP 7894.

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