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  • Clothes make the man

    When an individual chooses to enter into an agreement via a management company, he  has to accept all of the consequences of that decision, the good and the bad. This principle applies in particular to working relationships. In the Kucer case,1 the Superior Court recently confirmed that, barring extraordinary circumstances, an employee hired and paid through their own management company is not entitled to termination notice or pay in lieu thereof. For tax purposes, the employee in question decided to proceed this way. Consequently, he was unable to demonstrate that the agreements entered into had been imposed by the employer. An individual seeking to avail himself of the tax benefits connected to a contract for services  may as a consequence lose the protections applicable to employment contracts. The context In 2007, Stephen Kucer started a company, which went bankrupt in 2012; its assets were acquired by 8237514 Canada inc. ("Canada Inc."), a wholly-owned subsidiary of 9265-0597 Québec inc. ("Québec Inc."), with Stephen Kucer as one of the shareholders. The shareholders of Québec Inc. wanted Stephen Kucer to become the chairman of Canada Inc., but Kucer insisted that he render his services via his own management company, Harland Tech Group inc. ("Harland").  Canada Inc. therefore entered into a contract for services with Harland, according to which Harland would provide Canada Inc. with Stephen Kucer's services as chairman, with Harland assuming responsibility for Kucer’s remuneration. Stephen Kucer lost his position as chairman of Canada Inc. when the latter terminated Harland's contract for services. Kucer then initiated proceedings seeking pay in lieu of notice of termination. The parties' positions Stephen Kucer argued he was dismissed without cause, and that as an employee of Canada Inc., he was entitled to pay in lieu of notice. In contrast, Canada Inc. argued that Stephen Kucer was not an employee, but rather an independent worker whose services were retained by Harland, and therefore, the agreement with Harland could be terminated for any reason  and without providing Stephen Kucer with any notice. The outcome of the dispute The Superior Court reviewed several rulings by the Court of Appeal and endorsed, among others, remark made by Justice Chamberland2 who stated that workers who seek to avail themselves of the benefits associated with a management company when rendering  services cannot avoid the disadvantages associated with such an approach, unless the arrangement is the result of a subterfuge or smokescreen imposed by the employer. In this matter, Stephen Kucer made the well-informed decision to sign a contract through his own management company. In the absence of any evidence that the employer imposed this way of operating, one cannot conclude that there were  any extraordinary circumstances which would allow the Court to pierce the corporate veil and to provide Mr. Kucer with the status of an employee. In the absence of a direct contractual relationship between Canada Inc. and Stephen Kucer, the Court refused to recognize he had any entitlement to pay in lieu of notice. This dispute is also demonstrative of the principle, underlined by the Court, , whereby economic dependence does not amount to an employer-employee relationship of subordination which would make it possible to conclude an employment contract, rather than a contract for services, existed between the parties. Conclusion A person rendering services to an employer via his management company cannot be considered to be an employee, unless he has demonstrated the existence of extraordinary circumstances. Given that such an individual is not a party to the agreement entered into with the company to whom services are being rendered, he cannot claim that the company is his employer, nor can he claim the legal protections afforded to employees.   8237514 Canada inc. v. Kucer, 2018 QCCS 12 Conseillers en informatique d'affaires CIA inc. v. 4108647 Canada inc., 2012 QCCA 535  

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  • Is workplace discrimination everyone’s business?

    Ariane Villemaire and Véronique Morin   The Supreme Court held that the British Columbia Human Rights Code protects employees against all forms of discrimination in the workplace, even if the perpetrator of such discrimination is not their employer. On December 15, 2017, the Supreme Court issued a very interesting judgment1 on the subject of discrimination in the context of a person’s employment or the terms and conditions of their employment. The Supreme Court concluded that section 13(1) of the British Columbia Human Rights Code is not limited to protecting employees from discrimination by their employer; it also provides protection against discrimination at the hands of a co-worker, even if that person works for another employer. Summary of the facts Mohammadreza Sheikhzadeh-Mashgoul was a civil engineer employed by Omega and Associates Engineering Ltd. (“Omega”). Pursuant to a contract between Omega and the City of Delta for road improvement work, Mr. Sheikhzadeh-Mashgoul supervised the work of the general contractor, Clemas Contracting Ltd. (“Clemas”). Clemas hired Edward Schrenk as a site foreman and superintendent. While Mr. Schrenk was at work, he made several derogatory remarks about Mr. Sheikhzadeh-Mashgoul’s religion, place of origin and sexual orientation. Despite the intervention of Omega and Clemas, Mr. Schrenk continued to make racist and homophobic remarks. Clemas ultimately terminated Mr. Schrenk’s employment. Mr. Sheikhzadeh-Mashgoul filed a complaint before the British Columbia Human Rights Tribunal (“Tribunal”) against Mr. Schrenk and Clemas. Both defendants filed a motion to dismiss the complaint, arguing that there was no employment relationship with the complainant and as a result, section 13(1) of the Human Rights Code did not apply. Decisions below Section 13(1) of the Human Rights Code reads as follows: 13(1) A person must not (a)    refuse to employ or refuse to continue to employ a person, or (b)   discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. (Emphasis Ours) The Tribunal denied Mr. Schrenk’s application, concluding that the expression “person” could not relate solely to the complainant’s employer and pointing to the need to protect everyone working in a common enterprise (in this case, a construction site).2 The Supreme Court of British Columbia upheld the Tribunal’s decision, but the Court of Appeal held that the Tribunal had erred and that it lacked jurisdiction to deal with the complaint. Decision of the Supreme Court of Canada The Court allowed the appeal.   Five of the nine judges concluded that the Tribunal had jurisdiction to hear Mr. Sheikhzadeh-Mashgoul’s complaint and that section 13(1) of the Human Rights Code protects employees from all discrimination with “a sufficient connection to their employment context”,3 regardless of the identity of the perpetrator of the discrimination. The majority analyzed the wording of section 13(1) and concluded that the term “person” must be given a broad interpretation as it covers all people,  not only an employer or a person who exercises control over the employee. It also determined that the expression “regarding employment” means that the discrimination must be related to the employment context. As such, the majority noted that this expression is not limited to discrimination within hierarchical workplace relationships. The majority stated that employees are vulnerable in the employment context, since they are a captive audience to those who discriminate against them in their workplaces. Finally, the majority also considered the arrangement, as well as the purposes of the Human Rights Code and concluded that section 13(1) protects employees against discrimination in the context of employment, whether perpetrated by their superiors or by any other person. The majority therefore affirmed that the Tribunal had jurisdiction to hear Mr. Sheikhzadeh-Mashgoul’s complaint against Mr. Schrenk. We note that Chief Justice McLachlin and Justices Côté and Brown dissented, concluding instead that section 13(1) of the Human Rights Code applies only to discrimination in the context of employer-employee or similar relationships. It should be noted that only Mr. Schrenk had sought judicial review and appealed the decisions of the lower courts. Accordingly, the Supreme Court focused only on the question of whether section 13(1) of the Human Rights Code applied to Mr. Schrenk. That being said, since the Tribunal’s decision was upheld, we must conclude that the provision also applied to Clemas. The complaint against Mr. Schrenk’s employer was therefore upheld. Impact of the decision in Quebec The provisions of the Charter of Human Rights and Freedoms (“Charter”) differ from section 13 of the Human Rights Code. Section 10 protects every person against discrimination. This provision reads as follows: 10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. Section 15 of the Charter refers to “discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment”.4 At first glance, these aspects appearto relate more to an individual’s employer. On the other hand, section 10.1 of the Charter (which specifically relates to harassment) could apply to third parties and not only the complainant’s employer: 10.1. No one may harass a person on the basis of any ground mentioned in section 10.5 We would also note that section 46 of the Charter provides a guarantee in relation to economic and social rights and it reads as follows : “Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being.”6 Finally, section 4 of the Charter provides a right to the safeguard of every person’s dignity. Conclusion Although this recent decision of the Supreme Court relates to a British Columbia statute, it will nonetheless be interesting to see how it is applied, particularly when the Quebec courts have occasion to rule on the scope of the Charter provisions pertaining to employment. In this case, the Supreme Court obviously stressed the objective of protecting human rights, but clearly based its decision on the terms and expressions used in the legislation at issue and the legislative history of the British Columbia Human Rights Code. Caution should therefore be exercised and distinctions drawn before jumping to any hasty conclusions.   British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62. Id., para. 17. Id., para. 3 Charter of Human Rights and Freedoms, CQLR, c. C-12. Id. Id.

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  • Freedom of association of physicians practising at a specialized medical centre: the Supreme Court of Canada declines to intervene

    On February 8, 2019, the Supreme Court of Canada dismissed the application by the Fédération des médecins spécialistes du Québec for leave to appeal from the judgment of the Court of Appeal of Quebec1 in a case concerning the freedom of association of physicians practising at a specialized medical centre (“SMC”). In that decision, dated June 1, 2017, the Court of Appeal unanimously concluded that physicians’ right to associate was not violated by section 333.3 of the Act respecting health services and social services2 (“AHSSS”). The effect of that section is to prevent participating and non-participating physicians under Quebec’s public health insurance plan from practising together at an SMC. In accordance with its usual practice, the Supreme Court stated no reasons in its judgment on the leave application. However, based on that decision, the decision of the Court of Appeal can now be said to be settled law on this point. At this point, the law is clear on the question of physicians’ freedom of association: it is not absolute and physicians’ practice at SMCs remains subject to the statutory constraints imposed by the AHSSS. We would note that the applicants claimed that the restrictions imposed by the section in question and the provisions adopted under it infringed their fundamental rights and freedoms and should be declared to be unconstitutional. More specifically, the applicants argued that their right of association and their right to choose their colleagues were violated by those provisions. It must be noted that section 333.3 of the AHSSS provides that an SMC may be operated in only two forms: either exclusively by physicians who participate in the health insurance plan and are paid under the agreement entered into pursuant to section 19 of the Health Insurance Act3 or only by physicians who do not participate in that plan. The result is that participating physicians may not offer their services at an SMC where non-participating physicians practise. At trial, the Superior Court4 had concluded that the practice of medicine at an SMC was not protected by freedom of association. [TRANSLATION] [102] The guarantee of freedom of association given to members of a profession is not jeopardized by the mere fact that they are regulated by a statutory scheme. Physicians are free to join together, but they simply do not have the constitutional right to do so without being subject to the restrictions on SMCs established by the AHSSS. The Superior Court had further found that the effect of section 333.3 of the AHSSS is to regulate the SMC’s operating activity and not to prohibit, prevent or interfere with the formation of an association. Accordingly, a person cannot claim a constitutional right to do a job the way he or she wishes, outside of any organized framework; that is not protected by the charters. A physician may therefore not claim the right to create business relationships with the persons of his or her choice, for that reason. The Court of Appeal adopted the same position. As had the Superior Court, the Court of Appeal held: [TRANSLATION] [35] The appellants may not rely on freedom of association to claim absolute and unconditional freedom to associate as they choose and to practise medicine on the terms that suit them, on the ground that they want to practise medicine with others ….5 The Court of Appeal therefore adopted the reasons stated by the trial judge and unanimously held that the impugned provisions did not violate freedom of association. Physicians may choose their status and associate for the purpose of practising medicine on the terms set out in section 333.3 of the AHSSS but may not claim a constitutional right to do so as they wish.   Fédération des médecins spécialistes du Québec v. Bolduc 2017 QCCA 860 CQLR, c. S-4.2 CQLR, c. A-29 Fédération des médecins spécialistes du Québec v. Bolduc 2015 QCCS 2680 Supra, note 1    

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  • Artificial Intelligence, Implementation and Human Resources

    In this era of a new industrial revolution, dubbed as “Industry 4.0”, businesses are facing sizable technological challenges. Some refer to smart plants or the industry of the future. This revolution is characterized by the advent of new technology that allows for the “smart” automation of human activity. The aim of this technological revolution is to increase productivity, efficiency and flexibility. In some cases, it means a radical change to the corporate value chain. Artificial intelligence is an integral part of the new era. Dating back to the mid-1950s, it is typically defined as the simulation of human intelligence by machines. Artificial intelligence aims to substitute, supplement and amplify practically all tasks currently performed by humans1, becoming in effect a serious competitor to human beings in the job market. Over the past few years, the advent of deep learning and other advanced learning techniques for machines and computers have given rise to several industrial applications that have the potential to revolutionize how businesses organize the workplace. It is believed that artificial intelligence could drive a 14% increase in global GDP by 2030, a $15.7 trillion potential contribution to the global economy annually2. The productivity gains in the workplace created by artificial intelligence alone could represent half that amount. It goes without saying that the job market will have to adjust. A study published a few years ago predicted that within twenty years, close to 50% of jobs in the United States could be completely or partially automated3. In 2016, an OCDE study concluded that on average 9% of jobs in the 21 OECD countries would be at a high risk of automation4, and some experts even go so far as to claim that 85% of jobs that workers will be doing in 2030 haven’t been invented yet!5 At the very least, this data shows that while human beings are still indispensable, the job market will be strongly influenced by artificial intelligence. Whether due to the transformation of tasks, the disappearance of jobs or the creation of new trades, disruptions in the workplace are to be expected and businesses will have to deal with them. The arrival of artificial intelligence thus appears to be inevitable. In some cases, this technology will lead to a significant competitive advantage. Innovative businesses will stand out and thrive.  However, in addition to the major investments that will be required, the implementation of this new technological tool will require time, effort and changes to work methods. Implementation As an entrepreneur, you have no choice but to adapt to this new reality. Not only will your employees be affected by the organizational change, they will also have to be involved to ensure its success. During the implementation phase, you may discover that new skills will be required to adjust to your new technology. It is also very likely that some of your employees and managers will be adverse to the change. This would be a normal reaction since as humans we tend to respond negatively to any sort of change. A change in the work environment can lead to a sense of insecurity, requiring that employees adopt new behaviours or work methods6 and dragging them out of their comfort zone. An employee’s fears can also be the result of misperceptions. Potential impacts must be carefully considered before your new technology arrives. The failure rate for organizational change is over 70%. It is believed that the high failure rate for the adoption of new technology is due to the fact that the human aspect is often overlooked in favour of the technological or operational benefits of implementing the technology7. Failure can lead to higher costs for introducing the new tool, productivity losses or the abandoning of the initiative. Advance planning is especially important when implementing artificial intelligence to identify any challenges related to its integration in your business. It is important that smart technology be implemented by skilled employees who share the business’ values to ensure the new system does not perpetuate unwanted behaviours. To help with your planning, here are a few questions to stimulate discussion: Implementation What is the objective of the new technology, its advantages and disadvantages? Who will be in charge of the project? What skills will be needed to implement the technology in the organization? Which employees will be responsible for implementing the technology? What information and training should they be given? Work organization What duties will be replaced or affected by the new technology and how will they be affected? What new tasks will be created after the new technology is set up? Will positions be abolished, staff transferred or jobs lost? What terms of the collective agreement will have to be considered in terms of transfers, layoffs and technological change? What notice and severance should be anticipated if there are job losses? What positions will have to be created after the technology is set up? What new skills will be required for these positions? How and when will new positions be filled? How will the users of the technology be trained? Communication Who will be in charge of communication? Should you set up communication tools and a communication plan? In what form will such communication be made and how often? When and how will employees and managers be informed of the arrival of the new technology, its purpose, its advantages and the impacts on the organization? When and how will the job losses, labour transfers and new positions be announced? What tools will be used to reassure employees and eliminate misperceptions? Mobilization What actions can be taken to engage employees and managers in the project? What are the likely reactions to the change and how can they be lessened or eliminated? What tools can managers be given to help them oversee the change? This list is not meant to be exhaustive but it can be a starting point for considering the potential impacts of new smart technology on your employees. Bear in mind that good communication with your employees and their commitment could make a difference between the success or failure of the technological change. Lavery Legal Lab on Artificial Intelligence (L3IA) Lavery has set up the Lavery Legal Lab on Artificial Intelligence (L3IA) 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.   Spyros Makridakis, The Forthcoming Artificial Intelligence (AI) Revolution: Its Impact on Society and Firms, School of Economic Sciences and Business, Neapolis University Paphos, 2017 Sizing the prize, PWC, 2017 Carl Benedikt Frey and Michael A. Osborne, The future of employment: How susceptible are jobs to computarisation  Oxford University, 2013 Melanie Arntz, Terry Gregory, Ulrich Zierahn, The Risk of Automation for Jobs in OECD Countries, OECD Social, Employment and Migration Working Papers, 2016 Emerging Technologies' Impact on Society & Work in 2030, Institute for the Future and Dell Technologies, 2017 Simon L. Dolan, Éric Gosselin and Jules Carrière, Psychologie du travail et comportement organisationnel, 4th ed., Gaétan Morin Éditeur, 2012 Yves-Chantal Gagnon, Les trois leviers stratégiques de la réussite du changement technologique, Télescope - Revue d’analyse comparée en administration publique, École nationale d’administration publique du Québec, fall 2008

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  • Caron confirms that employers have a duty to accommodate workers with an employment injury

    On February 1, 2018, the Supreme Court of Canada rendered an important decision in Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) v. Caron1 (“Caron”), confirming the position expressed by the Court of Appeal in 20152 as well as the state of the law regarding the employer’s duty to accommodate  where a worker has suffered an employment injury. Quebec employers must therefore engage in the process of reasonable accommodation , in accordance with the provisions of the Charter of Human Rights and Freedoms3 (the “Charter”) up to the point of undue hardship, whether it be in the context of a worker exercising his right to return to work or seeking suitable employment following an employment injury. WHAT ARE THE MAIN CHANGES RESULTING FROM THE DECISION? As drafted, the Act respecting industrial accidents and occupational diseases4 (the “AIAOD”) does not explicitly state that employers have a duty to accommodate a worker who has suffered an employment injury at work. That being said, the case law on accommodation, as it has developed in recent years,imposes a duty on all employers to take the initiative to reasonably accommodate a worker who is disabled within the meaning of the Charter, which is clearly the case for a worker with functional limitations following an employment injury. Prior to the Court of Appeal’s decision in June 2015, the case law held that the rehabilitation measures under the AIAOD were, in and of themselves, an accommodation measure and neither the Commission de la santé et de la sécurité du travail(now the CNESST) or the Commission des lésions professionnelles (now the Tribunal administratif du travail (“TAT”)) were of the view that they had the authority to impose, recommend or suggest any form of accommodation to an employer. Consequently, they refused to apply the provisions of the AIAOD in light of the Charter. In order to ensure that a worker with a disability caused by an employment injury is not disadvantaged as compared with a worker with a pdisability caused by a personal condition, the Supreme Court of Canada confirmed that the implementation of the employer’s duty to accommodate must go beyond merely applying the provisions of the AIAOD and that the obligations imposed by the Charter must also be taken into consideration. HOW DOES THIS AFFECT EMPLOYERS? Caron will most likely change the way all participants (including the CNESST, employers, workers and their unions) will approach the process of finding suitable employment. For employers who have not already changed their practices following the Court of Appeal’s decision, the main consequences of the Supreme Court of Canada decision can be summarized as follows: Employers must try to reasonably accommodate a worker whose employment injury resulted in functional limitations and cannot limit themselves to simply claiming that there is no suitable employment available within the business. The CNESST and the TAT have the power to verify whether an employer tried to find an accommodation, before or after identifying suitable employment, in the context of applying the AIAOD. The duty to accommodate does not require that the employer fundamentally modify a worker’s employment conditions or create a customized position. However, the employer must make an actual effort to reinstate the worker in the business and, where necessary, reasonably accommodate, or even rearrange the worker’s tasks so that the worker can perform his or her duties, without undue hardship. Since the duty to accommodate must be assessed in light of the global situation. The one or two-year period, as the case may be, during which a worker may exercise the right to return to work under s. 240 of the AIAOD is nothing more than another factor to be considered, without being determinative.  According to the teachings of the Supreme Court of Canada regarding reasonable accommodation, employers cannot refuse to allow a worker to occupy suitable employment in their establishment based solely on an automatic application of s. 240, relying on the expiry of the time period within which the worker has to exercise the right to return to work.  In every case, employers must instead be able to establish that they tried to accommodate the worker with functional limitations. Should the TAT conclude that an employer’s claim that it has no suitable employment to offer a worker unlawfully interferes with a Charter right, it could exercise its remedial powers thereunder, which includes the power to impose accommodation measures on the employer or condemn it to pay the worker moral or punitive damages.  COMMENTS The Supreme Court of Canada has clearly set out the obligations of employers under the AIAOD applied in accordance with the Charter, and called upon employers to revise their management practices in employment injury files. As such, the process of finding suitable employment may become more complex and delicate for all parties involved because a full search is required. Employers should be able to establish that they actively sought a reasonable accommodation before they can claim that there is no suitable employment within their business for one of their workers with functional limitations. It will therefore be very useful, if not essential, for employers to keep a careful record of any steps taken in this regard. Workers and their unions will also have a duty to cooperate in searching for suitable employment. If employers have a duty to accommodate, workers have a corollary duty to accept any reasonable accommodation proposed. It will also be interesting to see how this decision will be applied by the CNESST and the TAT. Lavery will keep you informed of any significant development in this regard.   2018 SCC 3. 2015 QCCA 1048. CQLR, c C-12. CQLR, c A-3.001.

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  • New developments regarding the criminal negligence of employers

    On August 31, 2017, the Ontario Court of Justice sentenced1 Detour Gold Corporation (“Detour Gold”) to pay a fine of $2,625,333 after it pleaded guilty to a charge of criminal negligence causing the death of an employee. Facts Detour Gold has operated an open pit mine near the Ontario-Québec border since 2013. In April 2015, the company tried several times to have a leach reactor repaired after noticing some leaks. On June 3, 2015, a Detour Gold millwright, Denis Millette, was assigned to repair a defective joint on the reactor. While doing the repair, the employee was exposed to sodium cyanide, a highly toxic substance used in the mining industry to extract gold from ore, that had leaked out from the reactor. The employee became ill and died. The autopsy results showed that his death was caused by sodium cyanide poisoning. On April 21, 2016, the company was charged with criminal negligence causing death under the Criminal Code,2 as well as with 15 counts under the Ontario Occupational Health and Safety Act.3 The company subsequently pleaded guilty to the criminal negligence charge in exchange for the charges under the Occupational Health and Safety Act being withdrawn. Decision The Court sentenced Detour Gold to pay a fine of $1.4 million, a victim fine surcharge of 30% ($420,000), and restitution to the deceased employee’s family in the amount of $805,333, the equivalent of the earnings he would have received until he retired. In its reasons, the Court found several instances of negligence on the part of Detour Gold, in particular, that the employee had had no training or information that would have enabled him to identify the signs of cyanide poisoning, the company had not ensured that the employee was wearing appropriate personal protective equipment, there was no clean-up procedure for sodium cyanide spills, and no one knew how to identify and treat cyanide poisoning. Referring to the recent judgments in Stave Lake Quarries Inc.4 and Metron Construction,5 the Court was of the opinion that the fine had to be significant, so that businesses would not view it as the ordinary cost of doing business,6 despite the fact that no criminal or penal charges had ever been filed against Detour Gold and the company had been experiencing deficits since it began operating in 2013. This $1,400,000 fine is the largest fine imposed on a company convicted of criminal negligence causing death.7 Note that six charges relating to violations of the Ontario Occupational Health and Safety Act8 are still pending against three Detour Gold supervisors. Other recent cases We would also draw your attention to several recent decisions in criminal negligence cases involving employers. In its decision dated October 27, 2016, in Stave Lake Quarries,9 the Provincial Court of British Columbia accepted the parties’ joint recommendation and sentenced the employer to pay a fine of $100,000, plus a victim fine surcharge of $15,000, following the death of an employee. The facts reveal that while carrying out a procedure on her second day on the job, an employee driving a truck used to haul rocks failed to use the parking brake when she stopped the truck. The air brakes failed and the employee died when the truck rolled over. In that case, the employer pleaded guilty to the charge of criminal negligence, primarily because it had failed to provide a rigourous system for hiring, training, and supervising. In another case, on July 21, 2017, the Court of Québec sentenced10 Century Mining Corp. to pay a fine of $200,000 for criminal negligence causing bodily harm, despite the fact that the company had declared bankruptcy in 2012. In that case, an employee doing drilling in a mine was crushed by a heavy truck; he suffered serious injuries and was blinded. The company was convicted of failing to identify the real risks in the situation and failing to inform the truck driver that drilling was underway. On the other hand, Ressources Métanor Inc.was acquitted11 on December 8, 2017, of criminal negligence causing death. A charge had been filed against the company as a result of an accident involving three employees who drowned in 2009 when the elevator car they were in descended to a level of the mine that was underwater. The facts revealed that the probes used to activate high water alarms had been disconnected and that a bolt in one of the pipes used to carry water underground was defective. In spite of those deficiencies, the Court found that Ménator’s officers had not shown wanton or reckless disregard. While certain deficiencies observed in the operations were contrary to the Act respecting occupational health and safety (“AOHS”),12 the evidence did not reveal that any person or organization was responsible for disconnecting the probes. We are also awaiting two criminal negligence decisions in the near future, in R. v. Fournier13 and R. v. CFG Construction inc.14 We would note that in 2016, in Fournier, the Superior Court of Québec dismissed15 the application for judicial review and, as did the judge who presided over the preliminary inquiry, allowed the charges of criminal negligence and involuntary manslaughter to proceed to trial. In that decision, the Superior Court concluded that a workplace death resulting from a violation of the AOHS could serve as the basis for an order to stand trial on a charge of manslaughter under the Criminal Code. We will be following this case with interest, because a conviction of an employer on a manslaughter charge resulting from a violation of occupational health and safety legislation would be a first. Conclusion Since Bill C-4516 was enacted in March 2004, making it easier to bring criminal negligence charges in cases involving workers’ health and safety, the number of convictions of employers has risen and the sentences imposed have skyrocketed. It is in employers’ interests to consider these court decisions as one more reason to enhance their prevention measures in order to ensure compliance with the applicable occupational health and safety legislation and thus fulfil their general duty to take appropriate measures to avoid injuries resulting from doing a job or performing a duty.   R.  v. Detour Gold,C.J.O., No. 0511-998-164537 / 0511-998-5380 (sentence August 31, 2017). Criminal Code, RSC 1985, c. C-46, sections 219 and 220. Occupational Health and Safety Act, RSO 1990, c. O.1. R. v. Stave Lake Quarries Inc., 2016 BCPC 377. R. v. Metron,2013 ONCA 541: see our comments on this decision here. See page 15 of the decision: “The fine must also be significant enough to not be considered as a simple cost of doing business”. We would note that in Metron, the employer was sentenced to pay a fine of $750,000. Charges against each of the supervisors for failing to supervise the employee and not ensuring that he was wearing personal protective equipment. Supra, note 5. R. v. Century Mining Corp., C.Q., No. 615-01-021168-136 (sentence July 21, 2017). R. v. Ressources Métanor inc., C.Q., No.625-01-003393-149 (conviction December 8, 2017). Act respecting occupational health and safety, CQLR c. S-2.1. R. v. Fournier, No. 500-01-088108-136. R. v. CFG Construction inc., No. 200-01-175428-139. Fournier v. R., 2016 QCCS 5456. An Act to amend the Criminal Code (criminal liability of organizations), Assented to on November 7, 2003, 2nd Sess., 37th Parl. (Can.). See our comments at the time on the passage of this bill here.

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  • Has there been a change in the standard for the administrative dismissal of an employee due to poor performance?

    On October 4, 2017, the Honourable Justice Pierre-C. Gagnon of the Superior Court of Québec, sitting in judicial review of an arbitral award, rendered a key decision1 on the criteria to be considered in order to uphold an administrative dismissal. The facts An employee working as an administrative technician was dismissed for poor performance. The employer and the employee had agreed on a three-month performance improvement plan prior to the dismissal. The employee’s performance did not improve during this period, despite the numerous meetings between the employee and his superior. The employee continued to make mistakes in carrying out his duties and systematically declined the employer’s offers to help. Faced with the employee’s inability to meet the plan’s requirements, the employer offered him a job as a receptionist, with less demanding tasks than those required of an administrative technician. The employer gave him three days to accept the offer. After the three days, the complainant refused the proposed assignment, preferring instead to continue with the performance improvement plan. There was still no progress several weeks later, and the employer dismissed the employee for administrative reasons. Arbitrator Jean Ménard was seized of the grievance challenging the dismissal.2 He held that the dismissal was abusive as it was unreasonable to expect the employee to provide an answer regarding the position within the three-day period. The job had indeed been posted and the deadline for accepting applications was later than the amount of time given to the employee. The arbitrator added that the employer breached its duty to reassign the employee to less demanding tasks and therefore to find an alternative to the administrative dismissal. The employer applied for judicial review of the decision on the grounds that the arbitrator imposed an obligation on the employer that does not exist in Québec labour law, namely to reassign the employee to less demanding tasks as opposed to proceeding to a dismissal. The decision The Honourable Justice Pierre-C. Gagnon of the Superior Court held that the arbitrator’s conclusions were reasonable and dismissed the application for judicial review. Justice Gagnon held that the employer had an obligation under Québec law to make a reasonable effort to reassign the employee to another more suitable position. Therefore, despite the fact that this obligation is not expressly stated in Costco,3 which is considered the leading case, the “Edith Cavell”4 test still applies in Québec.5 In this decision from a British Columbia arbitration tribunal, the arbitrator outlined five criteria for evaluating administrative dismissals, similar to those developed in Costco in Québec. While Justice Delisle acknowledged in Costco that the criteria developed by the Québec courts are based on those coming out of Edith Cavell, he did not apply the criterion requiring the employer to make a reasonable effort to reassign the underperforming employee to another position more suited to the employee’s abilities, nor was such a criterion specifically adopted by the Québec courts. Justice Gagnon held that this obligation of means does not apply to every case in Québec, but that, in this matter, arbitrator Ménard’s decision that the employer breached its obligation to reassign the employee was reasonable. Conclusion It will be interesting to see how both this case and the case law regarding administrative dismissals due to poor performance more generally evolves, should the decision be upheld on appeal.6. This obligation, which has been newly incorporated into Québec law, may end up altering the usual process followed by employers in cases of administrative dismissals. The employer may then have to assess the possibility of reassigning an underperforming employee to another more suitable position before dismissing the employee on administrative grounds, and perhaps provide sufficient time within which the employee can decide to accept the new position. Could the courts find that there has been a “constructive dismissal” were the new position to substantially change the basic conditions of the employment contract (for eg., wages and level of responsibility)? Stay tuned...   Commission scolaire Kativik c. Ménard, 2017 QCCS 4686. Association des employés du Nord québécois et Commission scolaire Kativik (Harry Adams), 2015 QCTA 247. Costco Wholesale Canada Ltd. c. Laplante, 2005 QCCA 788: this landmark decision in Québec outlines the five criteria used by Québec courts to uphold an administrative dismissal for poor performance. They are a) the employee is aware of the company’s policies and what the employer expects of the employee, b) the employee has been notified of any deficiencies, c) the employee had the support needed to remedy the deficiencies and meet the employee’s objectives, d) the employee was given a reasonable time period within which to adapt and e) the employee was informed of the risk of dismissal should there be no improvement. Re Edith Cavell Private Hospital and Hospital Employees’ Union, Local 180, (1982), 6 L.A.C. (3d) 229 (B.C.). Especially, as the judge states, since the Supreme Court’s decision in Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28 endorsing the approach adopted in Edith Cavell. An application for leave to appeal the Superior Court decision has been filed.

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  • No return to work in the foreseeable future: an undue hardship for employers

    Reversing a decision of the Tribunal administratif du travail (“TAT”), the Superior Court of Québec confirmed that the employer will meet the burden of demonstrating undue hardship, thus justifying a non-discriminatory administrative dismissal, where there is no evidence that the employee will be able to return to work in the foreseeable future.1 The facts On June 19th, the Superior Court2 quashed a decision rendered by Administrative Judge Bernard Marceau of the TAT on November 22, 2016.3 In that decision, the TAT struck down a municipal resolution dismissing the City of Forestville’s director of public works due to poor health which had prevented him from working for over 21 months. The decision The Superior Court applied the standard of reasonableness and concluded that the administrative judge’s decision was unreasonable. The Court noted that the administrative judge had correctly identified the applicable legal principle when he wrote that [TRANSLATION] “with respect to the right to administratively dismiss the complainant due to a prolonged absence, the case law requires evidence of an inability to perform one’s work in the near or foreseeable future.”4 That being said, the administrative judge committed two errors. First, the Court held that the City did not have to introduce medical evidence establishing that the employee was unfit to return to work. The undisputed evidence before the administrative judge was sufficient. Even the employee’s attending physician concluded that the employee was incapable of returning to work in the near future.5 The second error in law identified by the Court involved the application of the notions of “accommodation” and “undue hardship”. It has been established in the case law that there are limits to the employer’s duty to accommodate where an employee is unable to return to work in the foreseeable future and is incapacitated for an indeterminate period of time.6 It is also recognized that the employer will have established undue hardship where an employee cannot return to work in the foreseeable future.7 Conclusion The Superior Court held that the fact that the employee could not provide evidence that he would be able to return to work in the foreseeable future constituted undue hardship for the City. The Court therefore held that the dismissal was not discriminatory and that the only reasonable conclusion was to uphold the decision of the municipal council terminating the employment.8   Ville de Forestville c. Tribunal administratif du travail, 2017 QCCS 3999, at para 55. Ville de Forestville c. Tribunal administratif du travail, 2017 QCCS 3999. Gravel c. Forestville (Ville de), 2016 QCTAT 6666. Ville de Forestville c. Tribunal administratif du travail, 2017 QCCS 3999, at paras 35 and 40. Ibid. at paras 43-46. Ibid. at para 49. Ibid. at para 50. Ibid. at para 57.

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  • Dismissed after being convicted of procuring

    In a decision rendered on May 29, 2017,1 arbitrator Jean-Pierre Lussier confirmed the dismissal of a cashier employed by the Société de transport de Montréal who was convicted of procuring. The facts Hired in February 2008, the employee pleaded guilty to charges of procuring in 2014. The victim was a 16 year old minor The Société de transport de Montréal (“STM”) dismissed the employee on the grounds that the conviction was incompatible with the inherent duties of a cashier. The STM further claimed that the employee lied when he was hired, stating that he had never been convicted of an offence. In fact, he had been convicted of breaking and entering in 2002. Charter protection The Charter of Human Rights and Freedoms2 states: “18.2. No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.” To justify the dismissal, the STM had to establish that there was a connection between the convictions for breaking and entering and procuring on the one hand and the position of cashier on the other. The decision The arbitrator held that the employee knowingly lied to the STM when he represented that he had not been convicted of a criminal offence, and that he was fully aware that the statement was false. It was not up to the employee to decide whether the previous conviction was or was not connected to the employment for which he was applying. The arbitrator considered that the grounds for dismissal related to the conviction for procuring were sufficient and did not address the issue of whether the lie would have justified the dismissal. In fact, the arbitrator felt that the conviction for procuring was connected to the position of cashier. In this regard, the arbitrator stated: [TRANSLATION] “Arbitrators have not hesitated to acknowledge that a sexual offence committed by an STM employee risks tainting the public’s trust, thereby establishing the connection between the conviction and the employment.”3 (Emphasis added) The public must be able to have complete confidence in the STM. To allow a cashier convicted of procuring to continue performing his duties would tarnish that relationship of trust and the STM’s reputation. The arbitrator noted that a cashier is regularly in contact with a clientele that can sometimes be vulnerable. This clientele is composed particularly of women, both minors and adults. Minors account for 11% of STM clients. Finally, a cashier is also responsible for ensuring the safety of commuters. Note that the employee in question had also been acquitted of a series of procuring charges involving a young woman he met in the metro while working as a cashier The arbitrator therefore concluded that the decision to fire the employee was not unreasonable and dismissed the grievance. Conclusion This arbitral award is very interesting because it establishes that an employer who provides transportation services to the public, and who must protect the public’s safety during such transportation, is justified in terminating the employment of a person who has committed a sexual offence. Keep in mind that the Charter of Human Rights and Freedoms is a quasi-constitutional law that protects individuals who have been convicted of a penal or criminal offence. The case law on this issue should be monitored and the circumstances fully evaluated before deciding whether there is truly a connection between the offence and the employment.   Société de transport de Montréal c. Syndicat des chauffeurs d’autobus, opérateurs de métro et employés des services connexes au transport de la STM, section locale 1983 (SCFP) (Marco Oviedo Viera), 2017 QCTA 630. C.Q.L.R., c. C-12. Société de transport de Montréal c. Syndicat des chauffeurs d’autobus, opérateurs de métro et employés des services connexes au transport de la STM, section locale 1983 (SCFP), supra note 1 at par. 31.

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  • Dismissal due to a breach of the occupational health and safety rules
    related to lockout

    In a decision rendered on August 14, 2017,1 Arbitrator François Blais dismissed a grievance contesting a dismissal, holding that a breach of occupational health and safety rules constitutes an objectively serious fault which must be dealt with severely regardless of whether or not the breach caused an accident or imminent danger for the company’s employees. The facts An employee was dismissed for unblocking the conveyor of the rip saw he was working on without applying the lockout procedure2 put in place by the employer, Produits Forestiers Résolu. The employer’s internal policy, which was posted on company grounds, provided that the employee could be dismissed after three violations of the occupational health and safety rules. In fact, the employee had already been suspended twice before for breaching the lockout policy during the nine-month period of the amnesty clause in the collective agreement. At the time of his dismissal, the employee had more than 20 years of service and had been mainly assigned to cleaning the sawmill facilities as a day labourer. The employee knew the lockout procedure and acknowledged that employees had to follow it when trying to unblock any machine with a “mandatory lockout” sign, as was the case here. However, he was stated that he had not seen the sign and had unblocked the machine using a five-foot driving pike, not with his hands. Decision According to the Arbitrator, the use of the employee’s hands or the driving pike to unblock the machine was not a determining factor in deciding whether the employee committed a fault has no impact on the outcome of the case given that use of the lockout procedure was mandatory in any event, it is unlikely that the employee did not see the sign. In the case under review, the Arbitrator did not believe that the actions of the employee were the result of a lack of information or training on the part of the employer. The violation of rules relating to occupational health and safety is considered to be objectively serious. Moreover, the serious responsibilities imposed on the employer, who must exercise the greatest care in occupational health and safety matters, is a very important aspect of such cases, which must be taken into consideration in the analysis of the disciplinary measure imposed by the employer In the context of his duty of care, the employer also has a duty of authority with regards to occupational health and safety rules, such that employers cannot tolerate hazardous conduct and must take appropriate measures against employees who breach safety rules. In this respect, the policy, which was known to the employee, provided that a failure to apply the lockout procedure constituted a serious breach and that a third violation would result in his dismissal. The Arbitrator indicated that such a policy, unilaterally put in place by the employer, is not binding on him when evaluating the appropriateness of the measure imparted on the employee, but it is nonetheless valid insofar as it does not violate the collective agreement. Such a policy is also reasonable, given the hazards associated with the industry in which the employer operates. Relying on the reasons of another arbitrator, he indicated that the disciplinary policy of the employer as it pertains to occupational health and safety [translation] “demonstrates, by the measures it imposes, which are known to the employees, what a worker can expect if he breaches the safety rules in question”.3 Therefore, given the disciplinary record of the employee, his attitude, the aggravating factor of his poor work habits despite his 20 years of seniority, as well as the disciplinary policy of the employer and the absence of any mitigating factors, the Arbitrator concluded that dismissal was warranted. Conclusion Employers would be well advised to adopt a disciplinary policy setting out the rules regarding occupational health and safety. Even if such policies are not binding on arbitrators, once the reasonableness of the policy and its compliance with the collective agreement are established, arbitrators are more likely to conclude that an employee’s awareness of the potential penalties in the event of a violation will justify the disciplinary measure imposed by the employer, whether or not the possible danger to the other workers actually materialized.   Produits forestiers Résolu (usine Girardville) et Unifor, section locale 497 (Éloi Thiffault), , 2017 QCTA 591. Lockout generally consists in installing a padlock on a machine to prevent it from being turned on while an employee performs maintenance on the machine. Paragraph 174 of the decision.

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  • Investing in the health of your employees - a wise decision! The legal issues to consider

    Numerous studies confirm that the poor health of workers, among other things caused by the increasingly sedentary nature of positions and the illnesses associated with this, will ultimately result in significant costs for businesses related to: Absenteeism; Compensation for work-related injuries and illnesses and occupational health and safety prevention measures; and Resulting losses in productivity Many companies have attempted to remedy the situation by adopting programs that involve the installation of physical fitness rooms in the workplace. However, this solution, while commendable, does raise some legal issues for employers. Issues related to the use of sports facilities in the workplace The main issue facing a company when it makes sports facilities available to its employees is its potential liability in the event of an accident. The company’s liability The company must be prudent and diligent and take all reasonable precautions to prevent accidents, because if there has been any negligence or fault on its part, it could be held liable for such incidents. For example, the company could be held civilly liable for injuries suffered by an employee as the result of a defect in or poor maintenance of the exercise facilities made available to employees. The following are examples of some reasonable measures that a company could adopt to reduce its exposure to liability: Ensure that the facilities are safe and properly maintained; Provide employees with relevant information regarding the use of facilities; Require that employees complete a physical activity readiness questionnaire The risk of an event occurring while using the facilities may be compensable by the CNESST A worker injured while using sports facilities in the workplace can file a claim with the CNESST. Generally, the case law recognizes that an activity carried out in the context of a privilege granted by the employer constitutes a personal action for which the worker accepts the risks as well as the liability. However, some activities, while seemingly personal, may be recognized as being an accident occurring in the course of employment where the circumstances demonstrate a “connection” between the activity in question and the employment, or a “usefulness related to the worker’s activity and the accomplishment of his work”. Obviously, each case is unique and must be assessed on its particular facts. The following are a few practical recommendations that will allow an well-informed employer to limit its risks: It must be made clear to employees that the use of the employer’s sports facilities is voluntary, personal and not compulsory; The employer or its representatives should not exert any pressure on employees to use the facilities; Employees must be forbidden from using the facilities during paid working hours or while they are under the employer’s authority; Subject to very specific cases, the good physical condition of workers need not be assessed by medical examinations. Detail to consider It would be wise to inform insurers of the use of sports facilities in the workplace. Insurers can then assess the effects of such an activity on existing insurance coverage and propose any changes which may be required Conclusion Employers should not resist or impede the implementation of programs aimed at employee well-being or fitness. However, due to the risks inherent in such activities, employers should conduct an initial analysis of the conditions in which such programs should be implemented and put in place. The members of Lavery’s labour and employment law team would be pleased to assist you along the way

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  • Employers and emergency call centre workers: your liability for property damage is limited

    In May 12, 2017, the Court of Québec1 concluded that an emergency call centre had no liability for property damage caused by first responders who broke down the door of a residence in order to assist a user in respiratory distress. In this case, the Court held that a call centre who required the intervention of a first responders service cannot be held liable for damages caused during the ensuing intervention, despite the fact that the call centre clerk had made a mistake by not providing the first responders with the access code to open the door. At the hearing, the facts were not contested by the call centre, which acknowledged that the access code for the front door had been provided to the call centre dispatcher but not to the first responders. Despite that mistake, the Court dismissed the action on the basis of the exoneration of liability provided for in section 42(2) of the Act respecting Pre-hospital emergency services2 (hereinafter the “Act”): 42. No person who acts as a first responder under this Act in accordance with the clinical intervention protocols determined by the Minister under section 39 shall incur liability for any injury that may result from his or her intervention, unless the injury is due to an intentional or gross fault. The immunity also applies to the authority having established the first responder service. Likewise, the person or body having required the intervention or assistance of a first responder service may not be held liable for any injury resulting from the intervention. [our emphasis] The Court held that the scope of this provision extended to the emergency call centre as “[a] body having required the intervention or assistance of a first responder service”.3 Up until this point, the provision had never been interpreted by the courts. Therefore, the Court stated that in the absence of any evidence of intentional or gross fault, the defendants could not be held liable pursuant to the second paragraph of section 42 of the Act respecting Pre-hospital emergency services.4 The clerk’s failure to provide the door access code, although an error, was not intentional and cannot be characterized as a gross fault. Furthermore, the Court stated that given that the firemen had to act very quickly, it cannot be presumed that they would have used the code to open the door to the user’s residence even if they had been in possession of that information. Furthermore, the evidence indicated that neighbours present at the relevant time told the first responders that they had the code for opening the door. In short, in the absence of evidence of intentional or gross fault, an emergency call centre could not be held liable. In our view, this decision is consistent with the object of the Act as set out in section 1, namely to “ensure that persons in need of pre-hospital emergency services are at all times able to obtain an appropriate, efficient and quality response aimed at reducing the mortality and morbidity rate among the recipients of pre-hospital emergency services”. Acting in concert with the first responder, the emergency call centre must also be able deliver rapid intervention by concentrating on its primary objective, which is to assist people in distress, without fear of being sued.   Roy v. Groupe Alerte Santé inc., 2017 QCCQ 6729 (hereinafter the “Roy” case). Act respecting Pre-hospital emergency services, CQLR, c. S-6.2 (hereinafter the “Act”). Ibid., s. 42 (2). Roy, supra note 1, para. 15.

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  • “Senior managerial personnel” status under the Act respecting labour standards

    In Delgadillo c. Blinds To Go inc. and the Tribunal administratif du travail,1 the Court of Appeal of Québec rendered a very important decision regarding the concept of “senior managerial personnel” under the Act respecting labour standards (“ALS” or the “Act”). In the future, this decision should guide the administrative judges of the Administrative Labour Tribunal (“ALT”) when they are required to determine if a manager who has been dismissed constitutes “senior managerial personnel” for the purposes of the Act. The interest of the decision As a general rule, and subject only to certain exceptions regarding specific benefits (such as family, pregnancy or maternity leave) or the recourses related to psychological harassment, senior managers are excluded from the application of the ALS. Consequently, much has been written on the issue of whether a manager constitutes senior managerial personnel, especially in the context of complaints contesting dismissals under section 124 of the ALS, where employers usually argues that the manager who was dismissed was a member of the senior managerial personnel and is therefore not entitled to file such a complaint. Since the enactment of the ALS, the predecessors of the Administrative Labour Tribunal2 have had ample opportunity to decide on this issue. However, case law on the subject is by no means unanimous. According to some administrative judges, a manager who has a high degree of autonomy, a generous salary and some discretion in discharging his or her duties, will not be categorized as a senior managerial personnel where he or she does not have the authority to make decisions regarding the company’s strategies and policies. Other administrative judges are less exacting. Despite having on several occasions considered the issued, the Court of Appeal has not developed clear principles regarding the relevant criteria applicable for determining “senior managerial personnel” status within the meaning of the ALS. In Delgadillo, the Court of Appeal decided on a flexible approach for analyzing the concept of “senior managerial personnel”. The facts in the Delgadillo case In this case, the manager of one of two plants owned and operated by Blinds To Go, a company which manufactures blinds made to measure within a short period of time and operates hundreds of retail stores. As soon as a customer places an order with one of the stores, the order is sent to one of the two plants to be manufactured and delivered to the customer within 48 hours. As such, the two manufacturing plants are the keystone of the company’s business model. In its decision, the Court of Appeal noted that the plant manager had an important role within the company, had broad discretion in the performance of his duties and had a close relationship with the company’s owners, who placed a lot of trust in him. The proceedings filed The plant manager filed a complaint for dismissal without good and sufficient cause with the Commission des relations du travail (“CRT”). The administrative judge who heard the case decided that he did not constitute “senior managerial personnel” pursuant to the ALS and therefore his complaint was valid. The CRT ultimately decided in favour of the plant manager. The specific issue of senior managerial status was raised before the Superior Court of Québec. The Superior Court reversed the CRT’s decision and held that the plant manager met the definition of senior managerial personnel and he, therefore, could not file a complaint for dismissal without good and sufficient cause. The Court of Appeal agreed with the CRT that the concept of “senior managerial personnel” under the ALS should be interpreted narrowly, but not so narrowly as to render it meaningless or restrict it solely to presidents of companies, or those occupying similar positions. Some details from the Court of Appeal’s decision In its judgment, the Court of Appeal noted that the CRT made two errors: The first is that it ignored the particular nature of the business and, specifically, the uniqueness of its business model. The manufacturing plant operations were the “nerve centre” of the business. Regarding this first error, the Court held that by omitting the context in favour of a partial image of the evidence, in light of the applicable legal principles, the CRT rendered a decision that was not within the range of possible outcomes and which ignored a great deal of evidence, resulting in a decision that was unacceptable on the facts of the case. The second error is that it interpreted the concept of “senior managerial personnel” so narrowly that it, for all intents and purposes, neutralized the provision or made it applicable solely to presidents of companies, or those occupying similar positions. At the initial trial, the CRT administrative judge held that the complainant plant manager’s authority and autonomy was limited to that division. On this view, a true senior manager would not only have authority over the plant, but would also have a say over other divisions, human resources, financial affairs, the IT network, marketing and the manufacturing division in the U.S. Thus, according to the ALT, unlike the complainant, a true senior manager is an employee who has a right to scrutinize [translation:] all of the company’s operations, not just one division, as important as that division may be. According to the Court of Appeal, such an analysis cannot be accepted. While a senior manager may be vested with general authority over the company, a person may also be found to be a senior manager despite the fact that he or she only has departmental, functional, divisional, regional or “consulting” authority. It is also possible that an individual with such authority will not constitute senior managerial personnel within the meaning of the ALS; everything will depend on the context and the facts. But it cannot be ruled out summarily without due consideration to context and facts, which is essentially what the CRT did in this case. What the decision stands for The Delgadillo decision broadens significantly the concept of “senior managerial” personnel by concluding that it is possible for a senior manager to have only departmental, functional, divisional, regional or “consulting” authority. Therefore, the qualification of a complainant as senior managerial personnel will no longer be limited to employees who oversee all of the company’s operations, but may also extend to those who have that authority in a much more restricted sphere, such as a single department, division or region. Similarly, individuals who exercise functional or “consulting” authority could also be found by adjudicators to constitute senior managerial personnel. This broadening of the analytical framework means that ALT judges will have to consider the specific nature of the company and its organization, in addition to the role of the individual employee, his or her importance in the hierarchy and the contribution he or she makes to the company’s success. That contribution need not be related to all of the company’s operations; it may be limited to only one of its major components. It is anticipated that ALT case law will follow the guiding principles of the Court of Appeal and will demonstrate greater flexibility in its assessment of who constitutes “senior managerial personnel” under the ALS.   Delgadillo v. Blinds To Go inc., 2017 QCCA 818. The Bureau du Commissaire général du travail and, more recently, the Commission des relations du travail.

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