Publications

The March 22, 2017 Budget of the Government of Canada, through its “Innovation and Skills Plan” (http://www.budget.gc.ca/2017/docs/plan/budget-2017-en.pdf) mentions that Canadian academic and research leadership in artificial intelligence will be translated into a more innovative economy and increased economic growth. The 2017 Budget proposes to provide renewed and enhanced funding of $35 million over five years, beginning in 2017–2018 to the Canadian Institute for Advanced Research (CIFAR) which connects Canadian researchers with collaborative research networks led by eminent Canadian and international researchers on topics including artificial intelligence and deep learning. These measures are in addition to a number of interesting tax measures that support the artificial intelligence sector at both the federal and provincial levels. In Canada and in Québec, the Scientific Research and Experimental Development (SR&ED) Program provides a twofold benefit: SR&ED expenses are deductible from income for tax purposes and a SR&ED investment tax credit (ITC) for SR&ED is available to reduce income tax. In some cases, the remaining ITC can be refunded. In Québec, a refundable tax credit is also available for the development of e-business, where a corporation mainly operates in the field of computer system design or that of software edition and its activities are carried out in an establishment located in Québec. This 2017 Budget aims to improve the competitive and strategic advantage of Canada in the field of artificial intelligence, and, therefore, that of Montréal, a city already enjoying an international reputation in this field. It recognises that artificial intelligence, despite the debates over ethical issues that currently stir up passions within the international community, could help generate strong economic growth, by improving the way in which we produce goods, deliver services and tackle all kinds of social challenges. The Budget also adds that artificial intelligence “opens up possibilities across many sectors, from agriculture to financial services, creating opportunities for companies of all sizes, whether technology start-ups or Canada’s largest financial institutions”. This influence of Canada on the international scene cannot be achieved without government supporting research programs and our universities contributing their expertise. This Budget is therefore a step in the right direction to ensure that all the activities related to artificial intelligence, from R&D to marketing, as well as design and distributions, remain here in Canada. The 2017 budget provides $125 million to launch a Pan-Canadian Artificial Intelligence Strategy for research and talent to promote collaboration between Canada’s main centres of expertise and reinforce Canada’s position as a leading destination for companies seeking to invest in artificial intelligence and innovation. Lavery Legal Lab on Artificial Intelligence (L3AI) We anticipate that within a few years, all companies, businesses and organizations, in every sector and industry, will use some form of artificial intelligence in their day-to-day operations to improve productivity or efficiency, ensure better quality control, conquer new markets and customers, implement new marketing strategies, as well as improve processes, automation and marketing or the profitability of operations. For this reason, Lavery created the Lavery Legal Lab on Artificial Intelligence (L3AI) to analyze and monitor recent and anticipated developments in artificial intelligence from a legal perspective. Our Lab is interested in all projects pertaining to artificial intelligence (AI) and their legal peculiarities, particularly the various branches and applications of artificial intelligence which will rapidly appear in companies and industries. The development of artificial intelligence, through a broad spectrum of branches and applications, will also have an impact on many legal sectors and practices, from intellectual property to protection of personal information, including corporate and business integrity and all fields of business law. In our following publications, the members of our Lavery Legal Lab on Artificial Intelligence (L3AI) will more specifically analyze certain applications of artificial intelligence in various sectors and industries.

Social media sites, like Facebook, are inexhaustible sources of personal information which can constitute evidence in the context of employer-employee disputes. In matters related to evidence, the general rule is that any relevant evidence is admissible.1 Moreover, the courts have ruled that an excerpt from a Facebook page is admissible into evidence, provided that it has not undergone [translation] “severe editing” which would alter its essence or prevent opposing party from contradicting it.2 However, the courts must set aside such evidence, even on their own initiative, when the following two criteria are met:3 There is a breach of fundamental rights and liberties;4 and Using such evidence may bring the administration of justice into disrepute. In what contexts have tribunals specialized in labour law decided to set aside evidence taken from a Facebook page? The fake social profile In 2012, in the case of Campeau c. Services alimentaires Delta Dailyfood Canada inc.,5 the Commission des lésions corporelles (“CLP”) ruled on the admissibility of excerpts from a private Facebook page in the context of the contestation by an employee of several decisions of the Commission de la santé et de la sécurité du travail (“CSST”) regarding an employment injury. In this case, the CLP refused to admit these excerpts as evidence since the employer had no serious reasons for questioning the employee’s honesty and in fact, obtained access to her private Facebook page by creating a fake social media profile which contained information intended to entice the employee into accepting a fake friendship request. In fact, the employer had created a false profile especially designed to capture the employee’s attention: work with the Cirque du Soleil, studies at the same university and similar artistic preferences. The CLP refused to take into consideration the employer’s evidence obtained through social networks for the following reasons: The use of a fraudulent scheme by the employer to access the Facebook page constituted an illicit and serious breach of the employee’s right to privacy; and The impossibility of obtaining this information legally (private profile which was not available for access by the employer), combined with the absence of prior serious doubts as to the employee’s honesty which would justify the employer in acting as it did, would have brought the administration of justice into disrepute. The CLP further concluded that the employer’s actions constituted an unrestrained incursion into the employee’s private life and it could not grant carte blanche for such spying. Involvement of a third party In 2016, in the case of Maison St-Patrice inc. et Cusson6, the Tribunal administratif du travail (“TAT”) refused to admit into evidence excerpts from the Facebook profile of an employee filed by the employer. The employee had a Facebook account which was restricted by privacy protection parameters and exercised active control over the visibility of her posts. However, the employer had succeeded in obtaining excerpts from this private account through an unidentified third party, possibly a colleague and “Facebook friend” of the employee, which the TAT concluded was subterfuge. The employee further testified to the effect that it was not the first time the employer had committed unjustified breaches of the privacy rights of its employees. Indeed, she had herself been asked by the employer to disclose the contents of the Facebook profile of a work colleague to which she had access. The TAT concluded that the employer had seriously breached the employee’s privacy, without a real interest or serious purpose for doing so, in hopes of possibly uncovering a lack of honesty. In order to act in this manner, the employer’s breach of the employee’s privacy should have been justified by rational, serious and necessary reasons, which was not the case. Furthermore, the employer could not use subterfuge to obtain information found in the private social profile of the employee. Since the illegally obtained evidence brought the administration of justice into disrepute, it could not be accepted by the tribunal. Conclusion Although it may sometimes seem appropriate for an employer to check the posts of its employees on social networks, some information obtained may be inadmissible as evidence before a tribunal. As in the case of surveillance, employers should ensure that, before they take actions which may constitute a breach of their employees’ privacy rights, that they have serious reasons for questioning their sincerity and honesty and avoid conducting systematic or random verifications. Furthermore, the creation of fake profiles, involving a third party and the use of other ruses or deceptive strategies to obtain confidential information without sufficient reasons may be very viewed poorly by tribunals, resulting in their refusal to consider evidence collected in such a manner. Civil Code of Québec, art. 2857, hereinafter “CCQ”. Particularly see on this subject: Landry et Provigo Québec Inc. (Maxi & Cie), 2011 QCCLP 1802, para 44-48. CCQ, art. 2858 ; Act respecting administrative justice, CQLR c. J-3, art. 11. What is most often breached is the right to privacy: Canadian Charter of Rights and Freedoms, Part I of the The Constitution Act, 1982 [Schedule B to the Canada Act 1982 (UK), 1982, c. 11 sec. 7, 8 and 24; Charter of Human Rights and Freedoms, CQLR, c. C-12, sec. 5 and 9.1. 2012 QCCLP 7666. 2016 QCTAT 482.

The Educational Childcare Regulation1 (the “Regulation”) requires every permit holder to ensure that each member of its childcare staff holds a certificate not older than 3 years which must have been obtained through the successful completion of an early childhood first-aid course of a minimum of 8 hours. Following the amendment of the Regulation of April 1, 20162, an additional component concerning the management of severe allergic reactions was added to this training obligation: 20. A permit holder must ensure that each childcare staff member holds a certificate not older than 3 years attesting that the member has successfully completed a minimum 8-hour early childhood first-aid course including a component on the management of severe allergic reactions or a minimum 6-hour refresher course updating the knowledge acquired as part of the early childhood first-aid course. This obligation on permit holders is accompanied by an administrative penalty in the event of its contravention.3 Recently, in the case of Syndicat québécois des employés et employées de service, section locale 298 et CPE Les Petits Semeurs,4, the arbitrator, André Sylvestre, upheld the decision of a childcare center not to compensate staff for the training time they are required to complete under this section of the Regulation. In doing so, he also considered the scope of the obligation on childcare centers under section 57(4) of the Act respecting labour standards5 (“ALS”), which reads as follows: 57. An employee is deemed to be at work (…) (4) during any trial period or training required by the employer. Facts It was the employer’s habit to send to educators in its employ, two months before the expiry of their first-aid card, a note reminding them of the requirement in section 20 of the Regulation to attend a six-hour refresher course. In addition, the terms of the collective agreement required each member of the childcare staff to have a first-aid training certificate. Attached to the note was a list of the schools in the region that provided the training. The employer gave some educators notice that if they failed to renew their first-aid card, they would be suspended without pay until it was renewed. Collective agreement and the parties’ positions Section 27.04 of the collective agreement stated that the employer would reimburse the registration fees for the first-aid course, but not the salary for the time spent taking the course. Section 27.05 stated that [translation] when taking employer-authorized training during the day, employees are deemed to be at work, and therefore paid. In its grievance, the union contested the employer’s decision not to recognize employees as “deemed to be at work” when they were taking their first-aid course, arguing that the training was considered essential for the performance of their duties and necessary by the very nature of their employment. In this regard, it relied on section 57(4) of the ALS as well as section 27.05 of the collective agreement. The employer disagreed, claiming that section 27.05 of the collective agreement did not support the employees’ argument and that section 57(4) of the ALS did not apply. In support of his claim, the employer maintained that since the training was not required by the employer itself, but rather imposed by the ministère de la Famille, neither section supported the employees’ position. Arbitrator’s decision At the outset, the arbitrator found that the first-aid courses did not meet the criteria set out in section 27.05 of the collective agreement. He was of the view that these courses were not one-time, but periodic events since they had to be renewed every three years. He further found that the employer had not authorized these courses and that it was not necessary for it to do so as they constituted a legal obligation. The employer had only reminded the employees to renew their training before the deadline was reached. Furthermore, clause 27.04 of the collective agreement only imposed the payment of the registration fees for the first-aid course. Had the parties intended to provide for the payment of salary for the time spent taking this course, they would have done so. Then, regarding the application of section 57(4) of the ALS, the arbitrator agreed with the employer’s submission that [translation] the imposition of a professional requirement by a legislative text does not constitute training required by the employer within the meaning of this section. Thus, the arbitrator held that the claim in the grievance could not succeed because the requirement found in section 20 of the Regulation originated from the ministère de la Famille and not the employer. Indeed, the employer only sent reminder letters to its staff members. Conclusion Based on this decision, and subject to more favourable provisions in the employment contract or collective agreement, employers may be entitled to refuse to acknowledge that educators in their employ are “deemed to be at work” when they are taking a first-aid course required by the ministère de la Famille. However, this conclusion could be different if the facts show that the training is in fact a requirement of the employer, particularly if the employee is left with no choice in the matter. For instance, in the decision in Syndicat des travailleuses en CPE - région Laurentides (CSN) et CPE Le petit équipage,6 the relevant clause in the collective agreement was different, and the arbitrator, André G. Lavoie, found that the training was effectively a requirement of the employer, since it was the employer itself that registered its employees in a first-aid course and imposed a time and date for taking it. In any event, one should conduct a detailed review of the circumstances and obligations set out in the collective agreement or employment contract to determine whether or not the employer does indeed not have to compensate employees for the time spent completing training required by the ministère de la Famille. CQLR, c. S-4.1.1, r. 2. For more information on the legislative amendments made to the Regulation, please consult the newsletter “Le Droit de savoir, Modification éventuelle au règlement sur les services de garde éducatifs à l’enfance” (in French only) November 2015, by Myriam Lavallée. Supra, note 1, ss. 123.1 and 124. D.T.E. 2016T-333 (T.A.). CQLR, c. N-1.1. D.T.E. 2015T-32 (T.A.).

On November 26, 2016, the new provisions of the Tobacco Control Act1 (the “Act”) will come into force. One of these provisions will considerably expand the scope of the rule which currently prohibits smoking within a nine-meter radius of any door leading to an enclosed place governed by the Act. This broadening comes about in two ways. The prohibition of smoking within a nine-meter radius of doors will apply to more areas Not only will smokers have to respect the ban within a nine-meter radius of any door, they also will have to observe the nine-meter rule around openable windows and air vents leading to an enclosed place where smoking is forbidden.2 Broadening of the areas where smoking is prohibited within a nine-meter radius The prohibition currently applies within a nine-meter radius of doors leading to any of the following enclosed spaces:3 Facilities maintained by a health and social services institution and premises where services are provided by an intermediate resource; Facilities operated by a childcare centre or day care centre; Enclosed spaces where community or recreational activities intended for minors are held.4 Beginning on November 26, 2016, smoking will also be prohibited within a nine-meter radius of any door, openable window or air vent leading to the following enclosed spaces:5 Facilities maintained by a health and social services institution and premises where services are provided by an intermediate resource; Premises or buildings placed at the disposal of an educational institution; Facilities operated by a childcare centre or day care centre; Enclosed spaces where activities of a sports or recreational, judicial, cultural or artistic nature are carried on, or where conferences, conventions or other similar events are held; Enclosed spaces where community or recreational activities intended for minors are held; Enclosed spaces where the activities held may be attended only by persons explicitly or implicitly invited or authorized by the host; Enclosed spaces used by a non-profit legal person or by an association, circle or club, whether a legal person or not, to which only members and their guests have access; Enclosed spaces where prevention, assistance and support services, including temporary lodging services, are offered to persons in distress or persons in need of assistance; Tourist accommodation establishments and the buildings of outfitting operations; Enclosed spaces where meals for consumption on the premises are ordinarily offered to the public in return for remuneration; Establishments operating under a public house, tavern or bar permit; Bingo halls; Workplaces; Premises used for detention; All other enclosed spaces to which the public has admittance.6 Notes The effect of this broadening is a significant expansion in the scope of the smoking prohibition within a nine-meter radius of any door leading to an enclosed place enumerated by the Act. The fact that the prohibition will apply within a nine-meter radius of any door, openable window and air vent leading to a workplace is in itself a significant change not only for smokers, but for all of Quebec’s employers. It is worth recalling that the Act also contains provisions regarding the operators of the spaces listed above: The obligation to post notices visible to the people using the place or business, indicating the areas where smoking is prohibited;7 Prohibition from tolerating smoking in an area where it is prohibited.8 Let us not forget that, in November 2015, the legislator reinforced the Act by increasing the liability of the administrators and executives of companies subject to respect it, increasing the amounts of the fines they are subject to and making it easier for the prosecution to prove the violations.9 In addition to being vigilant, companies should ensure that a policy regarding the use of tobacco products10 is in place and should also inform employees, clients, visitors and suppliers of the content of their tobacco control policy. CQLR, c. L-6.2. An Act to Bolster Tobacco Control, Bill n°44 (assented to on November 26, 2015), 1st sess., 41st legis., ss. 6 and 76. Except if the activities referred to are held in a dwelling. Tobacco Control Act, see note 1, ss. 2 and 2.2. Except if the activities referred to are held in a dwelling. Bill n°44, see note 2, s. 6. S. 10 of the Act. S. 11 of the Act. In this regard, please refer to our Need to know newsletter entitled “Tobacco Control and E-cigarettes: New Challenges for Businesses“ (March 2016), online under “Publications”. Such a policy should also seek to control the use of marijuana, as well as the use of any substance that can be smoked.

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.

Last January 18, Lavery published a Need to Know entitled “Knowledge of English as a requirement for employment: A Tower of Babel”, which considered a controversy in the case law surrounding the requirement of English as a condition of employment by employers in Québec. At the time, the authors expressed the hope that the Québec Court of Appeal would clarify the issue, which it has recently done. This newsletter provides an overview of the clarification provided by the Court of Appeal. On October 3, 2016, the Québec Court of Appeal rendered an important judgment in the case of Gatineau (Ville de) c. Syndicat des cols blancs de Gatineau inc.,1 (the “Ville de Gatineau” decision), which considered the problems raised where an employer makes knowledge of English a requirement of employment. In particular, this case clarifies the scope of section 46 of the Charter of the French Language2 (the “Charter”), which states that employers are “prohibited from making the obtaining of an employment or office dependent upon the knowledge or a specific level of knowledge of a language other than the official language [French], unless the nature of the duties requires such knowledge.” Context The facts of this case date back to 2009. In February of that year, the City of Gatineau posted a job opening for a finance clerk in the Revenue Division of the City’s Financial Department. One of the general requirements indicated in the posting was the ability to communicate in English. The list of tasks performed by the Revenue Division include billing, collections and recovery of amounts owed to the City. In addition, this Division provides a support service to answer taxpayer questions, which is available by telephone, electronic communication or in person. In this context, the interaction between the personnel and citizens is done in French however, the clerks will communicate in English when requested by the clientele. The same reasoning also applies to billing. Tax bills and all invoices are issued only in French, but the City will send an English version to the taxpayer upon request. Background of the proceedings After this posting, the Gatineau white-collar workers union (the “Union”) filed a grievance alleging that [translation] “the requirement of being able to communicate in English to obtain the position referred to in the posting [...] is abusive, arbitrary, discriminatory [...] and contrary to sections 45 and 46 of the Charter of the French Language.” On May 15, 2013, the arbitrator, René Turcotte, rendered a decision with respect to the grievance.3 In his award, the arbitrator found that the City’s requirement of proficiency in a language other than French was a violation of section 46 of the Charter. He agreed with the interpretation according to which an employer can only require knowledge of English in the following situations: [translation] “[A]ll cases in which proficiency in a language other than French is an integral part of the very essence of the position for which it is required, for example, the position of translator”; “[W]here this requirement is imposed by a law of public order, for example, section 15 of the Act respecting health services and social services”; “[W]here the lack of proficiency in a language other than French by the person holding the position would jeopardize the fundamental rights guaranteed by section 1 of the Charter of Human Rights and Freedoms, which states that “Every human being has a right to life, and to personal security, inviolability and freedom.”4 Based on these criteria, the arbitrator found that the City had not shown that the performance of the tasks of a finance clerk required knowledge of English. He therefore allowed the grievance. On June 11, 2013, the City of Gatineau applied for judicial review of this award. However, the Superior Court of Québec did not agree with the City’s arguments and dismissed its motion on the grounds that the terms of the award were among the possible and acceptable outcomes.5 On September 14, 2015, the Court of Appeal agreed to hear the case.6 The Court of Appeal decision On October 3, 2016, the Court of Appeal found in favour of the City of Gatineau, holding that the arbitrator’s award is unreasonable and [translation] “falls outside the bounds, and substantially so, of the range of decisions rendered under section 46 CFL: it is an anomaly.7” First, the Court considered the scope of section 46 of the Charter, noting that this provision states that an employer cannot require a person to have knowledge of a language other than French for a position “unless the nature of the duties requires such knowledge.” Furthermore, this requirement (hereinafter referred to as the “criterion of necessity”) has a more restrictive meaning than the simple notion of utility. The Court acknowledged that a finding that knowledge of another language is necessary will essentially be based on a specific factual situation and that the burden of proof is on the employer. The Court then considered the case law as well as commentary by Québec authors addressing this specific issue, referring in particular to the decision by the arbitrator Jean-Guy Ménard in the case of Syndicat des fonctionnaires municipaux de Québec (FISA) et Ville de Québec8 (the “Ville de Québec” decision), which is similar in several ways to the Ville de Gatineau decision. Indeed, in the Ville de Québec decision, the arbitrator took an approach which was much more flexible with regards to the criterion of necessity, resulting in the dismissal of the grievance. He found that it was sufficient to determine [translation] “whether the employer has shown, on a preponderance of the evidence, that “good knowledge of spoken and written English” is likely to allow for the adequate performance of the positions […] in question, or whether the performance of these tasks required such knowledge.”9 The Court of Appeal assessed the arbitrator’s decision in Ville de Gatineau in light of the decision in the Ville de Québec case. Reiterating [translation] “the three propositions on which the interpretive theory advanced by the arbitrator is based, and which he characterizes as teleological,”10 and assessing his first assumption,11 the Court held that the interpretation preferred by the arbitrator was contrary to the legislator’s intention insofar as it would mean applying a criterion of “absolute necessity”.12 On this point, the Court stated as follows: [Translation] [33] […] The legislator was addressing another issue: it wished to facilitate the resolution of actual and concrete difficulties, with supporting evidence and arguments, which one could characterize as cases of “relative necessity”. One can assume, for example, that many tour guides, maîtres d’s, waiters, hotel reception clerks, limousine chauffeurs, call center telephone operators, public relations agents, official spokespersons of someone or something, can practice their trade with no linguistic knowledge of any other language than the official language. But, depending on the circumstances, which again are crucial for this examination, it may be necessary to hire a tour guide who, if familiar with a language other than the official language, will be able to serve a clientele who speaks that language. This is true of all the examples I have just given and for many other analogous cases. This may then raise questions relating, for example, to the place of business, the make-up of the clientele, the frequency of contact, the appropriate level of knowledge, the importance of the service offered (based on the user’s perception, considered objectively), the organization of the work and the reciprocal accommodations – all of which are basically questions of fact. This was the goal of the legislator. And the economic viability of such a job or position, even its very survival, may depend on such considerations. Subsequently, the Court reviewed the arbitrator’s second and third assumptions,13 and concluded that his interpretation of section 46 of the Charter was much too narrow. Indeed, to endorse such a reasoning would have the effect of rendering any evidence presented by an employer regarding the necessity of understanding and speaking another language illusory. The Court of Appeal therefore allowed the appeal and authorized the Union to submit the grievance to another arbitrator. Comments This decision by the Court of Appeal clarifies the state of the law regarding knowledge of English as a requirement for employment. In addition, the Court also noted that any decision by an employer under section 46 of the Charter must be [translation] “based on a specific and well documented understanding of the actual constraints of the service being provided.”14 In practice, a prudent and diligent employer should properly document the reasons why knowledge of a language other than French is a requirement for a position. For example, where the majority of an employer’s clientele is English speaking and the employer believes that this justifies the hiring of an employee who also speaks English, they would be well advised to document the frequency of this employee’s contact with said clientele as well as the desired level of knowledge of English. As of the date of drafting of this article, the Union had not applied to the Supreme Court of Canada for leave to appeal this judgment. Lavery will follow the evolution of the law on this issue with interest and keep you informed of new developments. 2016 QCCA 1596. RLRQ c. C-11. Syndicat des cols blancs de Gatineau inc. et Gatineau (Ville de) (grief syndical), (T.A., 2013-05-15), SOQUIJ AZ-51206332. Ibid., para. 29. Gatineau (Ville de) c. Syndicat des cols blancs de Gatineau inc., 2015 QCCS 3066. Gatineau (Ville de) c. Syndicat des cols blancs de Gatineau inc., 2015 QCCA 1485. Supra, note 1, para. 41. D.T.E. 2013T-818 (A.T.) (motion for judicial review dismissed, 2014 QCCS 2293; motion for leave to appeal denied, 2014 QCCA 1987). For a detailed summary of this decision, see our Need to Know newsletter dated January 18, 2016. Supra, note 8, para. 36. Supra, note 1, para. 31. Namely, that the criterion of necessity is met in [translation] “all cases where proficiency in a language other than French is an integral part of the very essence of the position for which it is required, for example, the position of translator”. Supra, note 1, para. 33. The second assumption being that the criterion of necessity is met [translation] “when this condition is imposed by a law of public order, for example, section 15 of the Act respecting health services and social services”, and the third being that the criterion of necessity is met “where the lack of proficiency in a language other than French by the person holding the position would jeopardize the fundamental right guaranteed by section 1 of the Charter of Human Rights and Freedoms, which states that “Every human being has a right to life, and to personal security, inviolability and freedom.” Supra, note 1, para. 25.

Several reasons may lead an employer to conduct surveillance on an employee, to have him followed without his knowledge and to observe his activities. Rumours that an employee absent from work for health reasons is engaged in activities that are incompatible with his alleged health condition, a questionable diagnosis or contradictory medical evaluations, may raise suspicions. Surveillance therefore enables the employer to ensure that the employee’s absence is legitimate. However, since such a measure is, on its face, a violation of the employee’s privacy, it will only be legal if it complies with specific legislative and jurisprudential parameters. Privacy and the particular nature of the employment context The Charter of Human Rights and Freedoms2 (“Quebec Charter”) and the Civil Code of Québec3 provide the legal framework for assessing the legality of the employer’s decision to conduct surveillance on an employee. Such a decision generally means that there must be an evaluation of the right to privacy as well as the various aspects involved in such a right, such as the right to secrecy and to anonymity.4 However, this right is not absolute and may be restricted in certain circumstances.5 On the other hand, the employment context means that special considerations must be taken into account. Indeed, there is a relationship of legal subordination of the employee to his employer. A corollary to this relationship is the employer’s management rights,6 which can, to some extent, justify the surveillance and control of its employees’ work. Therefore, in some cases, the employer’s interests may take precedence over the employee’s right to privacy. As a result, the courts must often strike a balance between these two types of interests. The dos and don’ts of surveillance In the Bridgestone case,7 the Québec Court of Appeal set out the criteria for the admissibility of evidence obtained by surveillance. In that case, the employer dismissed an employee who had been absent from work for health reasons after obtaining information by way of surveillance. The Court held that the surveillance was, at first glance, an infringement of the right to privacy. In addition, this right is not limited to private places because it follows the person and not the place.8However, the Court noted that this right is not absolute and can be restricted. Therefore, surveillance outside of the workplace will be permitted by section 9.1 of the Quebec Charter and can be admitted into evidence if it is justified on rational grounds and conducted by reasonable means. Grounds The employer may not conduct surveillance on the basis of mere doubts.9 Vague suspicions, rumours or the employer’s impressions10 are insufficient. The employer must have serious grounds for questioning the honesty of the employee’s conduct: There must be a connection between the measures taken by the employer and what is required to ensure the effective operation of the business; The decision to conduct surveillance cannot be a purely arbitrary one applied at random; Reasonable grounds must exist before the decision to conduct surveillance is made. Therefore, the grounds will not be justified by the results of the investigation.11 Means With respect to the methods chosen by the employer, the surveillance must be necessary to verify the employee’s actions.12 In addition, the method must not be abusive or violate the employee’s dignity. Finally, the surveillance must be conducted in the least intrusive manner possible. In Bridgestone, the Court held that the surveillance met this standard because the employee had been filmed for only three days and it was conducted either in public places or in the vicinity of his residence. Application to the facts In the recent decision of Groupe Hexagone et Fortier,13the Administrative Labour Tribunal considered the admissibility of surveillance conducted by the employer. In this case, a video published on social media seemed to demonstrate that an employee on sick leave was in fact quite well. While the employee did not contest the filing of the video as evidence, he subsequently contested the merits of the surveillance conducted by the employer. After admitting the authenticity of the evidence, the tribunal considered the grounds and the means taken by the employer in conducting surveillance on the employee. First, it noted that only inconsistencies or contradictions of a serious medical or factual nature which raised doubts about the worker’s honesty could justify surveillance conducted outside of the workplace.14 In this case, the absence of witnesses to the employee’s workplace accident as well as the vague nature of the medical report were not, in and of themselves, rational or sufficient grounds for initiating the surveillance.15 However, the tribunal found that there were contradictions or inconsistencies between the contents of the video and the worker’s claims relating to his ability to work which were significant enough to raise legitimate questions in the mind of the employer. This was therefore a rational ground for implementing the surveillance. As for the means which were used to conduct the surveillance, the tribunal noted that surveillance is a last resort, and one must therefore assess whether other means were or could be taken to achieve the same purpose.16 In this case, the employer had taken such measures. However, the inconclusive results of the examinations and medical follow-ups, combined with the worker’s having been completely off work and the contents of the video, had made surveillance necessary. Therefore, the infringement of the worker’s privacy was justified on rational grounds and the surveillance was conducted through reasonable means. According to the tribunal, there were no less intrusive means than the surveillance to verify the worker’s honesty,17 particularly given that it was conducted in places which were accessible. Indeed, although the worker submitted that the parking lot and yard of the building where he lived were private places, the tribunal found that, since they were common areas accessible to many people, they were not as private as the worker had claimed.18 Consequences of the illegality of the surveillance Evidence which is obtained under conditions that infringe fundamental rights and freedoms and whose use would tend to bring the administration of justice into disrepute should be rejected.19 However, where evidence is obtained through surveillance in violation of the parameters referred to above, it may still be admitted if its use would not tend to bring the administration of justice into disrepute.20 This would be the case, for example, where the surveillance, while not justified, was conducted in a manner which minimized the impact on the privacy of the individual in question.21 Decision-makers therefore have two things to consider: they must first ask themselves: whether the evidence was obtained in a manner which violates fundamental rights and freedoms, and moreover, whether the use of the evidence would tend to bring the administration of justice into disrepute.22 These two criteria are just as relevant when information is obtained through social media.23 In the case of Hexagone, the video in question was posted on the employee’s public Facebook profile. That case is different from those in which the contents of the Facebook profile is private. In such a case, the criteria set out in the Bridgestone case will be relevant where the employer decides to verify the behaviour of an employee who is absent for health reasons through surveillance of his Facebook profile.24 Conclusion In conclusion, before any employer proceeds with surveillance, it is important to clearly identify the circumstances surrounding the employee’s absence and to understand the inherent risks of surveillance. If the criteria set out in the legislation and in the case law are not met, the evidence obtained in the surveillance could be declared inadmissible by the court. The masculine is used in this text solely for reasons of brevity. CQLR c C-12, ss. 5 and 9.1. CQLR c C-1991, arts. 3, 35, 36 and 2858 [C.C.Q]. Syndicat des travailleuses et travailleurs de Bridgestone Firestone de Joliette (CSN) c. Trudeau [1999] RJQ 2229 [Bridgestone], at p. 38. Section 9.1 of the Quebec Charter provides that “[i]n exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec. In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.” C.C.Q., art. 2085. Bridgestone (see note 4). Ibid., at p. 38. Ibid, at para 30. Kaizra et Gardium Sécurité, 2016 QCTAT 1898 [Kaizra], at para. 61. Ibid, at para 60. Bridgestone, at p. 45. Groupe Hexagone et Fortier, 2016 QCTAT 4128 [Hexagone]. Ibid, at para 78. Ibid, at paras 79 and 81. Ibid, at para 87. Ibid, at paras 87 to 90. Ibid, at paras 92 and 93. Act respecting administrative justice, CQLR, c. J-3, s. 11 [A.A.J.]; art. 2858 C.C.Q. Lessard et Meubles Canadel inc., C.L.P. 187899-04-0207, December 2, 2003, (decision granting the motion for revision) [Lessard]. See, in particular, the case of Kaizra, in which the judge held that while there were other means for verifying the employee’s health condition, the fact that the surveillance was conducted in public places or in the vicinity of the employee’s residence, as well as the employee’s admissions that he had engaged in activities that were not very compatible with his health condition, minimized the seriousness of the infringement of privacy and were admitted into evidence. See Lessard et Transport TFI 22, S.E.C. et Bourgeois, 2015 QCCLP 1114. For example, a serious violation of the employee’s fundamental rights could give way to the tribunal’s obligation to seek the truth. Maison St-Patrice inc. et Cusson, 2016 QCTAT 482. Ibid at para 26.

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.

On June 17, 2016, the Superior Court1 affirmed the 2014 decision of the Commission des lésions professionnelles2 (“CLP”) in Canadelle, s.e.c. and Commission de la santé et de la sécurité du travail.3 This decision put an end to the jurisprudential controversy regarding the application of sections 31 and 327 of the Act Respecting Industrial Accidents and Occupational Diseases4 (“AIAOD” or “the Act”), and settled the following question of law: Does a final decision from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”), recognizing a link between a new diagnosis and an employment injury or initial incident, bar an employer from subsequently seeking a transfer of costs under section 327(1) of the AIAOD? The CLP’s decision After reviewing the factors that can give rise to the application of section 31(1) of the AIAOD, the CLP (represented by a panel made up of three administrative judges) clarified what had previously been a controversial question of law, namely, whether or not a transfer of costs can be sought under section 327 of the Act in cases where a decision of the CNESST recognized a link between the new diagnosis (which purported to be an employment injury arising out of or in the course of care within the meaning of section 31 of the Act) and where the initial event had not been contested. The CLP’s conclusions can be summarized as follows: An injury or illness that arises in the course of a file and is considered a “new diagnosis” can be related either to the employment injury within the meaning of section 2 of the AIAOD or to the care or lack of care within the meaning of section 31, but it cannot be linked to both at the same time. Consequently, when the CNESST renders a decision recognizing the relationship between a new diagnosis and the employment injury or the initial event and this decision is not contested,5 that finding bars a request for the transfer of costs under section 327(1) of the AIAOD. Therefore, an employer that wishes to demonstrate that the new diagnosis actually results from one of the situations to which section 31 of the AIAOD applies must contest the CNESST decision before it becomes final and irrevocable.6 If the decision does in fact become final and irrevocable, the effect would be to establish a link between the employment injury and the new diagnosis, which means that the new diagnosis is considered an employment injury under section 2 of the Act. An employer failing to contest such a decision, or abandoning its challenge of such a decision, has the effect of rendering any subsequent request made under section 327 of the AIAOD inadmissible. The powers granted to the CLP (now the Administrative Labour Tribunal) under section 377 of the AIAOD do not authorize it to challenge or modify a final and irrevocable CNESST decision. The Superior Court’s decision After analyzing the CLP’s decision, the Superior Court found that it was reasonable and that there was no basis on which the Court should interfere with it. Accordingly, the CLP’s conclusions, as summarized above, remain applicable. Commentary The Canadelle decision serves as a reminder that, upon receipt of a CNESST decision, it is vital for an employer to immediately perform a further analysis of the decision in order to be able to make its position known and assert its rights in a timely manner. In cases where a decision recognizes a connection between the new diagnosis and the employment injury or the initial event, once the period provided for in the Act for contesting such a decision has expired, it is too late to allege that the injury arose out of care (or lack thereof) unless one can show reasonable grounds for being relieved from the obligation to apply for a review of the decision within the time period provided for by the Act. When in doubt, the holdings in Canadelle suggest that employers ought to act with an abundance of caution, which might include “preventive” challenges of decisions recognizing a new diagnosis where there is a chance of a remedy being available under section 31 of the AIAOD. 2016 QCCS 2806. On January 1st 2016, when An Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal, S.Q. 2015, c. 15, came into force, the Commission de la santé et de la sécurité du travail (CSST) was replaced by the “Commission des normes, de l’équité, de la santé et de la sécurité du travail” (“CNESST”) and the CLP was replaced by the Administrative Labour Tribunal. For more details about this reform, see the Right to Know newsletter entitled “Bill 42 and the reorganization of the Quebec labour-related institutions” (July 2015). 2014 QCCLP 6290. CQLR, c A-3.001. It should be noted that the CLP draws a distinction between situations where the CNESST renders no specific decision regarding the new diagnosis claimed to be covered by section 31 of the AIAOD, and situations where the CNESST renders a decision finding a link between the new diagnosis and the initial event or the recognized employment injury. (See para 20 of the decision). Section 358 of the AIAOD states that contestation of a CNESST decision must be filed within thirty (30) days of the notification of the decision.

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.

In December 2015, the Court of Appeal of Quebec in Éthier v. Compagnie de chemins de fer nationaux du Canada1 confirmed that section 36 of the Act Respecting Occupational Health and Safety (“AROHS”)2 does not apply to federal undertakings and that, accordingly, a worker who is pregnant or breastfeeding and who is on preventive withdrawal in accordance with the Canada Labour Code (“CLC”)3 is not entitled to receive an income replacement indemnity. The Court of Appeal also clarifies the scope of the evolution of the case law since the Supreme Court of Canada’s decision in Bell Canada v. Quebec  (Commission de la Santé et de la Sécurité du Travail)4 (“Bell Canada”) regarding the application of some provisions of the AROHS to federal undertakings. This decision is of interest not only with respect to the specific issue of the compensation of federal employees who are pregnant or breastfeeding, but also due to its analysis of the recent case law regarding the interaction between the federal and provincial occupational health and safety legislation. Factual background In August 2011, Ms. Éthier (“the employee”), a pregnant employee of the Canadian National Railway Company (“CN”), a federal undertaking, filed an application with the Commission de la santé et de la sécurité du travail (“CSST”)5 under the program “For a Safe Maternity Experience“. During that same period, in a report intended for CN, the employee’s physician recommended that her tasks be changed, failing which she should be put on preventive withdrawal. In September 2011, a CN representative informed the employee that he was unable to reassign her to another position, as recommended by her physician. The employee therefore chose to leave on preventive withdrawal, as provided under the CLC.6  The employee simultaneously applied to the CSST in hopes of receiving the income replacement indemnity to which pregnant workers are entitled under the AROHS and more specifically sections 36, 40 and 42 of this statute which deal with preventive withdrawal. Section 36, which is at the heart of the argument raised by the employee, essentially provides that the income replacement indemnity in question is the same as the one which is to be paid to an employee unable to perform his professional duties due to an employment injury, as set out under the Act respecting industrial accidents and occupational diseases7 (“ARIAOD”). It must be noted that the sections of the CLC applicable to the preventive withdrawal of a federal employee who is pregnant or breastfeeding do not provide for the payment of an income replacement indemnity. The proceedings The CSST declared that the employee was not eligible to participate in the provincial compensation regime regarding preventive withdrawal since the AROHS does not apply to pregnant workers employed by federal undertakings. Accordingly, the employee is not entitled to the income replacement indemnities provided for under section 36 AROHS. The Commission des lésions professionnelles8 and the Superior Court9 both denied the employee’s request, essentially for the same reasons. The conclusions of the Court of Appeal The employee raised the following arguments before the Court of Appeal: (1) Section 131 CLC constitutes an interjurisdictional reference in accordance with which the Canadian Parliament intended to make section 36 AROH applicable to federal undertakings; (2) In the absence of such a reference, section 36 nonetheless applies to federal undertakings as a result of the legislative amendments made to the CLC and the evolution of the case law since the decision in Bell Canada. As did the lower jurisdictions, the Court of Appeal dismissed these arguments for the reasons summarized below. a) Section 131 CLC is not an interjurisdictional reference Section 131 CLC essentially provides that a proceeding brought under a provision of Part II of the CLC does not affect the right of an employee to compensation under any statute relating to compensation for industrial accidents or occupational diseases. According to the Court of Appeal, this section does not constitute an interjurisdictional reference which would allow section 36 AROHS to apply to federal undertakings but rather it constitutes [TRANSLATION] “a reservation of rights the purpose of which is to protect the right of an employee to be compensated under a statute which addresses the compensation of industrial accidents and occupational diseases where the employee or his employer failed to comply with their occupational health and safety obligations.”10 This provision does not have the scope that the employee alleges. b) Despite the evolution of the case law since the Bell Canada decision, section 36 AROHS is inapplicable to federal undertakings. The employee further alleged that section 36 AROHS also applies to federal undertakings as a result of the legislative amendments made to the CLC since the Bell Canada decision and the subsequent evolution of the relevant case law. More specifically, she maintained that the Bell Canada decision is no longer authoritative. The Court of Appeal conceded that the state of the law has evolved quite a bit since the Bell Canada decision.11 This being said, the principles set out in that case remain relevant. It must be noted that in Bell Canada, the Supreme Court concluded that the sections of the AROHS which deal particularly with both the right of a pregnant employee to refuse to work and with preventive withdrawal were inapplicable to federal undertakings given that they pertain directly to labour relations, working conditions and the management and operations of federal undertakings.12 However, even in light of the recent evolution of the case law on this issue, a provincial law which “impairs” a federal undertaking on such subjects which are considered to be “vital” or “essential” to its operations or which cause it specific harm is inapplicable to it.13 In the present case, although the prevention scheme of the AROHS can be distinguished from the compensation scheme under the ARIAOD which is applicable to industrial accidents and which applies to federal undertakings, the income replacement indemnity for pregnant workers who are on preventive withdrawal pursuant to the AROHS cannot be likened to the one which is payable to an employee who is unable to work due to an occupational injury under the ARIAOD. Indeed, the Court of Appeal is of the view that the income replacement indemnity for pregnant workers must be classified as a “working condition” and therefore constitutes a vital and essential element of any undertaking. Accordingly, section 36 AROHS, which provides for the payment of such an indemnity is inapplicable to federal undertakings given that to decide to the contrary would have the impact of “impairing” one of its essential components.14 Conclusion This decision marks an interesting development in the case law dealing with the issue of the application of provincial occupational health and safety statutes to federal undertakings. In particular, we are of the view that there is a parallel to be made with the case of Purolator Courrier ltée v. Hamelin,15 in which the Court of Appeal concluded that section 32 ARIAOD does not apply to federal undertakings. In that case, the Court of Appeal held that the general jurisdiction of the provincial legislator over the subject-matter of a specific statute does not necessarily mean that each and every provision of such a statute will be directly and fully applicable to federal undertakings. It is important to analyze each provision of the provincial statute in order to determine what its effects are on the relationship of the employer with its employees. To the extent that such a review allows one to conclude that the provision in question affects the labour relations of the federal undertaking, it will be inapplicable to said undertaking. Given that the employee has filed an application for leave to appeal before the Supreme Court of Canada, we will monitor the evolution of the Éthier case with great interest.   2015 QCCA 1996 (the “Éthier case”). CQLR, c. S-2.1. R.S.C. 1985, c. L-2. [1988] 1 SCR 749. Since the Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal, S.Q. 2015, c. 15 came into force on January 1, 2016, the CSST has been replaced with the Commission des normes, de l’équité, de la santé et de la sécurité du travail and the CLP is henceforth replaced with the Tribunal administratif du travail. For more details regarding this reorganization of Quebec’s labour and employment institutions, please consult the following bulletin: Need to know, July 2015, “Bill 42 and the reorganization of the Quebec labour-related institutions”. Sections 132, 205 (6) and 205.1. RLRQ, c. A-3.001. Éthier and Compagnie de chemins de fer nationaux du Canada, 2013 QCCLP 4672. Éthier v. Commission des lésions professionnelles, 2014 QCCS 1092. It is to be noted that the Court of Appeal makes a clear distinction between the wording of section 131 CLC and that of section 4 of the Government Employees Compensation Act, RSC 1985, ch. G-5, which is the subject of a decision rendered by the Supreme Court in Martin v. Alberta (Worker’s Compensation Board), 2014 SCC 25, and which was relied upon by the worker in support of her claim. More specifically, sections 204 to 205.2 of the CLC, which deal with the preventive withdrawal of workers who are pregnant or breastfeeding, did not exist when this judgment was rendered. Moreover, recent Supreme Court cases have changed the analytical framework applicable to situations where the issue is the application of a provincial statute to a federal undertaking. The Court refers to the decision in Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, amongst others. Éthier case, paragraph 26. Id., paragraph 29. Also see Canadian Western Bank v. Alberta, cited above. Éthier case, paragraphs 36 and 37. D.T.E. 2002T-197 (C.A.). On the same subject : Commission de la santé et de la sécurité du travail c. Compagnie de chemin de fer Canadien Pacifique, D.T.E. 2002T-189 (C.A.).

Bill 44 has been adopted in the context of a major expansion of electronic cigarette sales.1 Bringing with it significant legislative reforms, this Bill regulates the use of electronic cigarettes in much the same way as it does tobacco. It also amends the Tobacco Act,2 changing its name to the Tobacco Control Act3 (hereinafter “the Act”). The Bill makes several amendments which should be of interest to those responsible for operating establishments which are subject to the Act, including employers and health and social services institutions: By November 26, 2017, certain employers must adopt a tobacco control policy; Provisions have been added the goal of which is to increase the liability of directors and officers of legal persons and partnerships; Provisions have been added which seek to facilitate the prosecution’s case in regulatory proceedings; The fines for violating the Act have been increased; The Act now applies to electronic cigarettes; Effective May 26, 2016, smoking will be prohibited in additional locations. Here are a few details regarding these amendments. OBLIGATION TO ADOPT A TOBACCO CONTROL POLICY By November 26, 2017, every health and social services institution, and every college or university-level educational institution, must adopt a tobacco control policy aimed at establishing a smoke-free environment. A copy of the policy must be sent to the Minister of Health and Social Services. In addition, every two years, the executive directors of such institutions will need to report to the board of directors with respect to the application of the policy and the institutions must send those reports to the Minister within 60 days of their being filed with the board of directors.4 INCREASED LIABILITY OF DIRECTORS AND OFFICERS OF LEGAL PERSONS AND PARTNERSHIPS Since November 26, 2015, the Act has contained new provisions which create presumptions of liability applicable to employers and to directors and officers of legal persons, partnerships, and associations without legal personality.5 Essentially, these provisions state that: In regulatory proceedings related to offences under the Act or its Regulations, evidence that the offence was committed by a representative, agent or employee of a legal person or partnership is sufficient to establish that said offence was in fact committed by that legal person or partnership; and If a legal person or a representative, agent or employee of a legal person, partnership or association without legal personality commits an offence under the Act or the Regulations, the directors or officers of the legal person, partnership or association are presumed to have committed the offence. The party who wishes to rebut these presumptions must establish that it exercised due diligence and took all necessary precautions to prevent the commission of the offence. NEW PROVISIONS LIGHTENING THE PROSECUTION’S EVIDENTIARY BURDEN IN RELATION TO OFFENCES For example, section 11 of the Act provides that the operator of a place where smoking is prohibited, such as a workplace, or a facility maintained by a health and social services institution, must not tolerate a person smoking (tobacco products or electronic cigarettes) in that area. Evidence of such tolerance exposes the operator liable to regulatory prosecution and, potentially, to a conviction and the imposition of a fine. On November 26, 2015, this provision was amended to facilitate evidence of the operator’s “tolerance”. Section 11 now states that, in regulatory proceedings, proof that a person smoked in an area where smoking is prohibited is sufficient to establish that the operator of the place or business tolerated such behaviour. An operator that wishes to rebut this presumption must establish that it exercised due diligence and took all necessary precautions to prevent its commission, in particular, by posting clearly visible notices stating that smoking is prohibited and by having no ashtrays. INCREASED FINES FOR OFFENCES Several fines for offences under the Act have been increased, including the fines for violations of section 11: BEFORENovember 26, 2015 AFTERNovember 26, 20156 FIRST OFFENCE FIRST OFFENCE $400 to $4,000 $500 to $12,500 SUBSEQUENT OFFENCE SUBSEQUENT OFFENCE $1,000 to $10,000 $1,000 to $25,000 APPLICATION OF THE ACT TO ELECTRONIC CIGARETTES Since November 26, 2015, electronic cigarettes and all other devices of that nature, including their components, are governed by the same rules as those applicable to tobacco products. Specifically, the Act’s prohibitions against “smoking” now apply to electronic cigarettes as well as tobacco products.7 NEW PROHIBITIONS AGAINST SMOKING In addition to the existing rules under the former Tobacco Act, as of May 26, 2016, the prohibition against smoking (tobacco or electronic cigarettes) will be extended to the following areas, amongst others: Motor vehicles in which a minor under the age of 16 is present; Patios of restaurants and bars; Outdoor playgrounds for children that are open to the public; Sports fields, vacation camps, skating rinks and outdoor pools used by minors and open to the public; Daycare and childcare centre grounds; and, The grounds of educational institutions providing preschool education services, elementary and secondary school instructional services, educational services in vocational training or educational services to adults in general education.8 COMMENTS Bill 44’s amendments significantly increase the scope of smoking prohibitions. They are part of the measures the government has taken to bolster tobacco control through a range of concrete and significant reforms, such as the obligation for certain employers to adopt a tobacco control policy, and the addition of presumptions of regulatory liability applicable to directors and officers of legal persons or partnerships in the event of offences under the Act. It should be noted that the validity of certain provisions of the Act has recently been challenged.9 However, the Superior Court of Québec has yet to render a decision.   An Act to bolster tobacco control, Bill 44 (assented to 26 November 2015), 1st Session, 41st Legislature (hereinafter “Bill 44”). CQLR, c T-0.01. CQLR, c L-6.2 Bill 44, sections 11 and 76. Sections 57.1 and 57.1.1 of the Act. Section 43.1.1 of the Act. Section 1.1 of the Act. Bill 44, sections 5 and 76. Association québécoise des vapoteries et al. v. Procureur général du Québec, Superior Court (200-17-023732-167) (motion filed February 25, 2016).

On November 24, 2015, the Québec Court of Appeal rendered a much anticipated judgment in the case of Université McGill v. McGill University Non Academic Certified Association (MUNACA)1 (“McGill”). In this judgment, the Court dispelled the ambiguity that has existed for several years in the case law regarding the grievance arbitrator’s jurisdiction in disputes regarding the interpretation and application of the provisions of collective agreements as they pertain to an employee’s return to work following an industrial accident or occupational disease, within the meaning of the Act Respecting Industrial Accidents and Occupational Diseases (“AIAOD”).2 In this case, the Court had to consider the following issues: can the parties to a collective agreement provide employees with more beneficial conditions than those contained in the AIAOD? And if so, who has jurisdiction to hear and render decisions regarding disagreements arising from such contractual provisions? Finally, the Court had to determine whether the collective agreement between the parties in this case contained a provision which offers greater protection than the statute. CONTEXT OF THE McGILL CASE An employee suffered from a permanent functional disability following an employment injury. The Commission de la santé et de la sécurité du travail3 (“CSST”) found that that disability prevented him from continuing to work in the same position he held prior to the injury, and therefore identified suitable alternative employment elsewhere in the labour market, since such employment was not available with his employer. After temporarily assigning the employee to light work, the employer terminated his employment nearly five years after the CSST had identified suitable alternative employment on the grounds that such employment still did not exist within the employer’s organization. The collective agreement between the parties also provided that [TRANSLATION] “where an employee becomes able to carry on his employment again, but has a permanent functional disability that prevents him from continuing to hold his previous employment, he shall be reassigned, without a posting, to another position suitable for his health condition, based on the available positions needing to be filled.” The employee filed grievances contesting the employer’s decision to terminate his employment claiming that, notwithstanding the CSST’s finding that suitable employment did not exist within the employer’s organization, he should be offered another position. The employer raised an objection to the arbitrator’s jurisdiction, arguing that [TRANSLATION] “where the worker was the victim of an industrial accident leading to a permanent functional disability, the arbitrator does not have jurisdiction over the worker’s ability to carry on employment with his employer.”4 The parties agreed to deal with this issue as a preliminary matter and the arbitrator held that the jurisdiction conferred on him by section 244 of the AIAOD to resolve the terms of the return to work [TRANSLATION] “does not include the jurisdiction to decide on the employee’s ability to carry on employment following an employment injury — an issue that is reserved for the CSST and the Commission des lésions professionnelles (“CLP”) on appeal.”5 Therefore, he allowed the employer’s objection and declined jurisdiction, without ruling on the merits of the grievances which, among other things, contested the employee’s termination. The union sought judicial review of this decision to the Superior Court, which quashed the arbitrator’s award and referred the grievances back to him for a ruling on the merits.6 The employer appealed this judgment to the Québec Court of Appeal, which affirmed the decision of the Superior Court and dismissed the employer’s appeal. DECISION OF THE COURT OF APPEAL Like the Superior Court, the Court of Appeal found that section 4 of the AIAOD permits the parties to a collective agreement to provide more beneficial provisions for employees than those set out in statute. Section 244 of the AIAOD does not limit the possibility of doing so. Therefore, the grievance arbitrator has exclusive jurisdiction to determine whether an agreement contains a clause which confers greater benefits than those set out in the AIAOD and, if so, to interpret and apply such a clause.7 For instance, the Court noted that a collective agreement could provide for more beneficial provisions which would: Extend the time period for exercising the right to return to work set out at section 240 of the AIAOD, thereby requiring the employer to reinstate the employee to his pre-injury employment or suitable employment, beyond the period prescribed by statute;8; Require the employer to offer or create suitable employment within its organization, if no such employment exists or is available; Require the employer to offer an employee who is incapable of resuming his pre-injury employment another position which is consistent with his residual abilities, even if such a position does not constitute “suitable employment” within the meaning of the AIAOD.9 The Court noted however that in exercising his jurisdiction the arbitrator remains bound by the findings made by the CSST or the CLP, where applicable, particularly as they pertain to the existence of an employment injury, the employee’s ability to resume his pre-injury employment, his functional disability, and what constitutes suitable employment.10 These findings are the background against which the arbitration award must be made. On the other hand, if the arbitrator concludes that the collective agreement does not provide for any additional benefits to the regime created by the AIAOD, he cannot claim jurisdiction to impose additional obligations on the employer, nor can an employee who is exercising the rights conferred on him by statute demand any greater rights. In such a case, the parties are and remain bound by the findings of the CSST and the CLP, where applicable.11 COMMENTS To summarize, according to the McGill decision, the grievance arbitrator has exclusive jurisdiction, first to determine whether a collective agreement confers more benefits on an employee than those provided for in the AIAOD and, if that is the case, to interpret and apply those provisions. In exercising this jurisdiction, the grievance arbitrator cannot reject, refute or dispute the findings made by the CSST or the CLP, and his intervention must be within the boundaries of the framework created by these organizations in accordance with the AIAOD. This decision therefore dispels the ambiguity12 which could have previously arisen, particularly from such decisions as Société des établissements de plein air du Québec v. Syndicat de la fonction publique du Québec13 and Syndicat canadien des communications, de l’énergie et du papier, section locale 427 v. Tembec, usine de Matane14, in which the courts upheld the decisions of grievance arbitrators granting the employer’s preliminary objections on the grounds that the arbitrators lacked the jurisdiction to call into question the decisions rendered by the CSST and the CLP in accordance with their exclusive jurisdiction. We note that the collective agreements in these two cases did not contain more beneficial provisions than the AIAOD on the right to return to work.15 Time will tell whether the Court of Appeal’s judgment in the McGill case has an impact on the negotiation of clauses in collective agreements providing for more beneficial terms and conditions than those contained in the AIAOD. However, in our view, disputes over the return to work of employees following an industrial accident or occupational disease must also be assessed from the perspective of the Court of Appeal’s judgment in the case of Commission de la santé et de la sécurité du travail v. Caron,16 which held that where an employee exercises his right to return to work and seeks suitable employment, the employer must engage in a process of reasonable accommodation in accordance with the Charter of Human Rights and Freedoms,17 up to the point of undue hardship.   2015 QCCA 1943. As of January 4, 2016, no application for leave to appeal to the Supreme Court of Canada had been filed. We would also like to draw your attention to the following decisions rendered by the Court of Appeal on the same subject: Syndicat des cols bleus regroupés de Montréal, section locale 301 v. Beaconsfield (Ville de), 2015 QCCA 1958, and Montréal-Est (Ville de) v. Syndicat des cols bleus regroupés de Montréal, section locale 301, 2015 QCCA 1957. CQLR c A-3.001. Since the coming into force of the Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal, S.Q. 2015, c. 15, on January 1, 2016, the CSST has been replaced by the “Commission des normes, de l’équité, de la santé et de la sécurité du travail” (“CNESST”) and the CLP has been replaced by the “Tribunal administratif du travail” (“TAT”). Comments at para 56 of the arbitration award (D.T.E. 2011T-582), reproduced by the Court of Appeal in the McGill decision, at para 10. Para 103 of the arbitration award, reproduced by the Court of Appeal at para 15. 2013 QCCS 1175. McGill decision, para 95. The time period provided for at section 240 of the AIAOD is either one or two years, depending on the circumstances. See, in particular, para 51. McGill decision, paras 73 and 74. Ibid., para 78. Ibid., para. 20. 2009 QCCA 329. 2012 QCCA 179. As noted by the Court of Appeal in the McGill decision, para 60. 2015 QCCA 1048. In this regard, we refer you to our previous publication on this decision, which you can consult by clicking here. CQLR c C-12.