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Three important rulings rendered in 2015 by the Tribunal administratif du Québec regarding attending physicians
Over the past year, the Tribunal administratif du Québec (TAQ) has issued several rulings dealing with oversight of the medical practice of professionals working in health and social services institutions. Several of these rulings will be of interest to institutions since they set out principles that tend to confirm the existence of a form of management rights over physicians, despite the lack of the traditional relationship of subordination between such institutions and their physicians. A physician’s refusal to take a refresher course is a sufficient reason for the institution to refuse to renew his status and privileges1 In a decision rendered on August 18, 2015, the TAQ upheld an institution’s decision not to renew the status and privileges of one of its physicians after he refused to take a refresher course to acquire the competencies necessary to his new functions. In this case, the department head had required that the physician take the refresher course so as to enable him to return to clinical practice after having previously devoted his practice exclusively to research work. In its ruling, the TAQ set out several principles that are essential to a good understanding of the internal functioning of institutions and the process for renewing a physician’s status and privileges, specifically: In the context of managing a medical service, the institution may require a physician to take a refresher course to acquire the competencies necessary to his practice; The physician’s professional privileges are not vested rights; The process for renewing a physician’s status and privileges set out in section 238 of the Act Respecting Health Services and Social Services2 is an administrative matter, distinct from the disciplinary process provided for in section 249 of the same statute. As for the review that the TAQ must conduct where a non-renewal is contested, the TAQ noted, in particular: That it must assess whether the physician’s situation justified the Board of Directors’ decision not to renew the physician’s privileges in light of the specific requirements of the institution; That it sits de novo and is therefore not limited to the facts originally at issue in the decision of the institution’s Board of Directors. Teaching: an obligation of physicians practising in a university hospital centre3 In a ruling rendered on April 30, 2015, the TAQ upheld the decision by the Board of Directors of a university hospital centre which refused to renew the status and privileges of a physician who failed to fulfill the obligations associated with the enjoyment of those privileges. At the outset, it should be noted that the clinical skills of the applicant were not at issue in this case, rather, it was the applicant’s behaviour towards teaching that was problematic. The TAQ found that the physician had always been properly informed of the complaints made against him in the area of teaching, but he had chosen to ignore them, deny they had any basis, and stubbornly refused to act upon the recommendations made to him, while employing an attitude of defiance and clearly seeking to place the blame on others. Thus, despite the numerous chances afforded to the physician, he had demonstrated very little improvement or interest. Accordingly, the institution had no other option but refuse to renew his status and privileges. The suspension of privileges imposed on a physician must be served despite the right of appeal4 In a ruling rendered on February 23, 2015, the TAQ refused a request made by a physician to grant a stay of the enforcement of a resolution adopted by a hospital imposing a suspension of her status and privileges for one month. The physician, a general practitioner with obstetric privileges at a health and social services centre, had a solo practice and delivered babies of the patients she followed. The TAQ found that the physician would suffer no different or greater prejudice than that inherent in the application of the sanction itself. In addition, the physician had not shown that she would suffer serious and irreparable harm given that, in the Tribunal’s view, the financial prejudice she would suffer was quantifiable and not irreparable. As for the prejudice suffered by the patients, the institution would be able to remedy any harm since they would be cared for by other physicians in the department in accordance with the normal procedures in place for replacing the applicant when she was away on vacation or at a conference. A. c. Centre Hospitalier A*, 2015 QCTAQ 08321 (application for internal review). CQLR, c. S-4.2. R.A. c. Centre Hospitalier A*, 2015 QCTAQ 041038 (requête en révision, 2015-06-04 (C.S.) 500-17- 088761-153). N.F. c. CSSS A, 2015 QCTAQ 02780.
Knowledge of English as a requirement for employment: A Tower of Babel
The purpose of this newsletter is to raise the awareness of employers regarding the problems related to making knowledge of English a requirement for employment. Section 46 of the Charter of the French Language (the “Charter”)1 provides that “[A]n employer is prohibited from making the obtaining of an employment or position dependent upon the knowledge or a specific level of knowledge of a language other than the official language, unless the nature of the duties requires such knowledge.” A controversy exists in the case law with respect to what constitutes a “requirement” as a result of the various possible interpretations of section 46 of the Charter. Arbitrator Jean-Guy Ménard reviews the possible interpretations in Syndicat des fonctionnaires municipaux de Québec (FISA) et Québec (Ville de)2 (“Ville de Québec” award), noting that there is no dominant trend. In his award, he notes that some arbitrators have interpreted the notion of “requirement” broadly, associating it with the reasonableness rule; others interpret it restrictively and strictly on the basis of the preamble of the Charter; some rely on the bona fide occupational requirement defence applicable in discrimination matters in accordance with the exception provided at section 46 of the Charter; lastly, others assess the notion of requirement according to qualitative and/or quantitative factors.3 Two recent decisions exemplify this controversy: Syndicat des cols blancs de Gatineau inc. et Gatineau (Ville de)4 (“Ville de Gatineau” award) and the Ville de Québec award. THE VILLE DE GATINEAU AWARD In the Ville de Gatineau award, the City posted a finance clerk position for the Revenue Division of the Finance Department, which required the ability to communicate in English. The Revenue Division is responsible for, among other things, billing, collection and recovery of the City’s revenues. It also provides customer service and answers to taxpayer questions regarding their invoices, a task which takes up 50% of their time. The tax statements and invoices are issued in French only. However, at the taxpayer’s request, the City will communicate with him or her in English. Following this posting, the Syndicat des cols blancs de Gatineau Inc. filed a grievance opposing the City’s requirement that employees be able to communicate in English, alleging that it was abusive, arbitrary and discriminatory and contrary to both the collective agreement and sections 45 and 46 of the Charter. The union argued that there was no relevant evidence as to the necessity of requiring knowledge of the English language. The City, on the other hand, argued, among other things, that taxation is a fundamental element of its relationship with taxpayers, and that the Revenue Division provides an essential service. The person occupying the position of finance clerk must therefore be able to provide comprehensible answers to taxpayers’ questions, including those from the significant portion of English-speaking taxpayers residing in the City of Gatineau. In his award issued on May 15, 2013, arbitrator René Turcotte concluded that the City’s requirement of the mastery of a language other than French constitutes a violation of section 46 of the Charter. He adopted the interpretation whereby only the following situations allow an employer to require knowledge of the English language: [TRANSLATION] “[I]n all cases where mastering a language other than French forms an integral part of the very essence of the position for which it is required, for example, a position as a translator”;5 “[W]hen this requirement is imposed pursuant to a law of public order, for example, section 15 of the Act Respecting Health Services and Social Services”;6 “[W]here by failing to master a language other than French, the position-holder would be endangering the fundamental right guaranteed by section 1 of the Charter of Human Rights and Freedoms which states that ‘[e]very human being has a right to life, and to personal security, inviolability and freedom’”.7 In the arbitrator’s view, the City failed to demonstrate, on the basis of these criteria, that performing the duties related to the finance clerk position requires knowledge of the English language. THE VILLE DE QUÉBEC AWARD In the Ville de Québec award, the City posted two collection agent positions for the Revenue Division, Collections and Management System Section, which required [TRANSLATION] “good knowledge of the spoken and written English language”.8 Collection agents are responsible for regularly following up on the amounts due to the City in specific files. According to the description of the position, the agents must provide explanations to taxpayers regarding the amounts owed to the City and inform them of their obligations and the consequences to which they may be exposed should they fail to pay these amounts. Agents also act as advisors to taxpayers and answer their questions regarding the payment of the City’s invoices. Their objective is to collect debts and negotiate agreements as quickly as possible to avoid having to transfer the files to the City’s legal department. The Syndicat des fonctionnaires municipaux de Québec (FISA) filed a grievance denouncing this posting. According to FISA, this requirement violated the collective agreement and section 46 of the Charter. It argued that [TRANSLATION] “the exception set out at section 46 with respect to the requirement certainly cannot correspond to notions such as usefulness, expediency or a desire to provide services to the English-speaking community”.9 For its part, the City argued that it should benefit from the requirement exception since in some cases, collection of unpaid accounts from commercial citizens mainly requires [TRANSLATION] “a specific knowledge of the files, a particular analytical ability and the ability to explain the situation and direct the discussion towards a solution.”10 Arbitrator Jean-Guy Ménard dismissed the grievance, concluding that the employer had demonstrated that the requirement was necessary to efficiently and normally perform the duties of a collection agent for the City of Québec. After reviewing the case law submitted by the parties, he stated that in order to determine whether the City had violated section 46 of the Charter, he had to ascertain [TRANSLATION] “whether the Employer had demonstrated, on a preponderance of the evidence, that ‘proper knowledge of the spoken and written English language’ allowed for the adequate performance of the duties related to the collection agent position at issue or whether performance of those duties would require such knowledge.”11 JUDICIAL REVIEW Judicial review was sought in respect of both of these awards.12 In both cases, the Superior Court dismissed the motions on the bases that the arbitrators’ awards fell within the range of possible and acceptable outcomes. Indeed, as the Supreme Court of Canada explained with respect to judicial review: “There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.”13 COURT OF APPEAL In Ville de Québec, the Court of Appeal also refused to intervene on the basis that the union failed to demonstrate that the arbitrator’s award was irrational, contrary to the collective agreement and absurd in its result, or that the Superior Court had erred in its assessment of the reasonableness of the award.14 The arbitrator’s award fell within the range of the rational solutions available to him. The City of Gatineau was recently granted leave to appeal the judgment of the Superior Court.15. COMMENTS We hope that the Court of Appeal will not limit itself to deciding whether the arbitrator’s award was reasonable, but that it will render a decision regarding the correct interpretation of section 46 of the Charter. The uncertainty created by this controversy affects all employers. A clarification would allow them to better determine the positions for which a requirement of proficiency in a language other than French is “required”. Lavery will follow the evolution of the law on this issue closely and will inform you of any developments. Charter of the French Language, CQLR c. C-11. Syndicat des fonctionnaires municipaux de Québec (FISA) et Québec (Ville de) (grief syndical), (TA, 2013-10-29), D.T.E. 2013T-818 (Motion for judicial review dismissed (C.S., 2014-05-14), 2014 QCCS 2293; Motion for leave to appeal dismissed (C.A., 2014-10-31), 2014 QCCA 1987). Ibid at para 26. Syndicat des cols blancs de Gatineau inc. et Gatineau (Ville de) (grief syndical), (TA, 2013-05-15), SOQUIJ AZ-51206332 (Motion for judicial review dismissed (C.S., 2015-06-25), 2015 QCCS 3066; Motion for leave to appeal granted (C.A., 2015-09-14), 2015 QCCA 1485). Supra note 3 at para 29. Ibid. Ibid. Supra note 2 at para 1. Ibid at para 20. Ibid at para 18. Ibid at para 36. Syndicat des fonctionnaires municipaux de Québec (FISA) c. Ménard, 2014 QCCS 2293 and Gatineau (Ville de) c. Turcotte, 2015 QCCS 3066. Syndicat des fonctionnaires municipaux de Québec (FISA) c. Ménard, ibid at para 45, referring to Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12. Syndicat des fonctionnaires municipaux de Québec (FISA) c. Québec (Ville de), 2014 QCCA 1987. Gatineau (Ville de) c. Syndicat des cols blancs de Gatineau inc., 2015 QCCA 1485.
Fatal work injury: Metron’s project manager sentenced to three and a half years in prison
On January 11, 2016, Vadim Kazenelson, a project manager for Metron Construction Corporation (“Metron”), was sentenced to three and a half years in prison.1 This sentence follows the decision rendered on June 26, 2015 in which the Superior Court of Ontario found Mr. Kazenelson guilty of the five charges against him, including four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.2 This decision follows an accident which occurred in Ontario on December 24, 2009, in which four Metron employees lost their lives after falling 14 floors when the suspended swing stage on which they were standing collapsed. A fifth employee was seriously injured while a sixth employee, who was wearing a safety harness, survived. The details of the Kazenelson case The investigation revealed, among other things, that the supervisor, who died as a result of the accident, had allowed six employees to work simultaneously on the same swing stage without knowing if the structure could support their weight and without verifying whether the employees were wearing safety harnesses. The facts reveal that on the afternoon of the accident, only two lifelines were available for six workers, in violation of the applicable regulations and industry practice. In the decision regarding Mr. Kazenelson’s conviction, the judge drew the following conclusions from the evidence: Despite the fact that supervision of the employees was the late supervisor’s responsibility, the accused, as project manager, held a position of authority over this supervisor and was exercising that authority the day of the accident; The accused knew full well that each worker using the swing stage had to be attached to a lifeline; The accused had used the swing stage during the day and knew there were only two lifelines for at least six workers; Thereafter, the accused took no steps to rectify the situation or to ensure that the workers did not use the swing stage without lifelines. Knowing that there were an insufficient number of lifelines, the accused had a duty to rectify the situation. Indeed, section 217.1 of the Criminal Code3 requires anyone who undertakes or has the authority to direct how another person carries out his work or performs a task to take reasonable steps to prevent bodily harm to that person, or any other person, as a result of that work or task. The employer or the individual who fails in this duty can therefore be considered to have omitted “to do anything” that it was his duty to do and can therefore be convicted of criminal negligence. This is precisely the conclusion that was reached by the judge in Mr. Kazenelson’s case. Mr. Kazenelson’s inaction constituted a clear breach of the duty imposed upon him by section 217.1 of the Criminal Code and Mr. Kazenelson’s criminal negligence significantly contributed to the accident. Moreover, the judge concluded that this was a case in which the accused “did advert the risk but decided that it was in Metron’s interest to take a chance.”4 “That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct.”5 It must be noted that in 2013, Metron, Mr. Kazenelson’s employer, pleaded guilty to the offence of criminal negligence causing death and was ordered by the Court of Appeal of Ontario to pay a fine of $750,000 following this accident.6 For further details regarding these decisions, we refer you to our previous publications.7 Conclusion This conviction represents the most severe sentence imposed in these types of circumstances since the amendment of the Criminal Code in 2004. Prior to this decision, the most serious sentence handed down in similar circumstances was two years less a day in the Scrocca case.8 Mr. Kazenelson’s conviction is illustrative of the trend by which Canadian administrative bodies and courts have been imposing increasingly severe sentences in respect of occupational health and safety infractions, the goal of which is to encourage employers to take occupational health and safety seriously and to invest in prevention. This is in fact reflected in the judge’s comments in the decision rendered on January 11, 2016: “[...] it is common ground that a term of imprisonment is necessary to adequately denounce Mr. Kazenelson’s conduct and to deter other persons with authority over workers in potentially dangerous workplaces from breaching the legal duty set forth in s. 217.1 of the Code to take reasonable steps to prevent bodily harm from befalling those workers.”9 Lavery will keep you informed of any significant developments in this case. R. v. Vadim Kazenelson, 2016 ONSC 25. R. v. Vadim Kanenelson, 2015 ONSC 3639. Criminal Code, RSC 1985, c. C-46, section 217.1. Supra, note 1 at para 33. Ibid at para. 44. R. v. Metron Construction Corporation, 2013 ONCA 541. You can access our publication regarding the trial court decision by clicking here and our publication regarding the Court of Appeal of Ontario decision by clicking here. R. v. Scrocca, 2010 QCCQ 8218. Supra, note 1, para. 23.
The importance of good communication
with one’s insurer: a childcare center is sued
PROVIDERS OF EDUCATIONAL CHILDCARE SERVICES, SUCH AS CHILDCARE CENTRES AND DAYCARE CENTRES, MUST HOLD VARIOUS TYPES OF INSURANCE COVERAGE, INCLUDING PROPERTY AND LIABILITY INSURANCE. ALTHOUGH SOME MAY THINK THAT THE SIMPLE FACT OF TAKING OUT SUCH INSURANCE COVERAGE IS ENOUGH TO PROTECT THEM, YOU MUST BE AWARE THAT OTHER STEPS ARE NECESSARY TO BENEFIT FROM FULL COVERAGE. OBLIGATION TO NOTIFY A LOSS TO YOUR INSURER The law, as your insurance contract, requires you to notify your insurer of any loss or event which may trigger the application of your insurance policy: “The insured shall notify the insurer of any loss which may give rise to an indemnity, as soon as he becomes aware of it. Any interested person may give such notice.”1 Such notification must be done quickly, that is, as soon as you become aware of the loss. Any failure to do so may bring you many headaches since the insurer may refuse to indemnify or defend you in whole or in part if it has not been notified quickly enough and thereby suffers injury: “An insurer who has not been so notified, and thereby suffers injury, may set up against the insured any clause of the policy providing for forfeiture of the right to indemnity in such a case.”2 A premium increase or even a refusal to renew your insurance policy upon its expiry may follow. It is therefore important to remain vigilant and notify your insurer of anything which may possibly involve your insurance coverage. KEEPING ONE’S INSURER INFORMED OF SETTLEMENT NEGOTIATIONS The law, as your insurance contract, provides that the insurer who pays you an indemnity to compensate an economic loss benefits from an automatic legal subrogation which will allow it to sue the person responsible for the loss to recover the amount it paid to you: “The insurer is subrogated to the rights of the insured against the person responsible for the loss, up to the amount of indemnity paid. The insurer may be fully or partly released from his obligation towards the insured where, owing to any act of the insured, he cannot be so subrogated.”3 In legalese, this remedy is called “a subrogatory remedy”, which results in the indemnified insured losing any and all rights he may have against the third party responsible for the loss in respect of the amount the insured received from the insurer. It is therefore essential that you notify your insurer of any negotiation process you initiate with the opposing party, if the insurer has not yet adopted a position on coverage or paid an indemnity. Indeed, a settlement entered into with the opposing party without the consent of the insurer may have a fatal impact on the insurer’s subrogatory remedy, as was recently the case in the matter of Société d’assurances générales Northbridge v. Maruca4 (hereinafter respectively referred to as “Northbridge” and “Maruca”). In this case, defendant Maruca had worked as an administrative assistant for a childcare centre (a “CC”). She was also responsible for payroll preparation and management. Now, Maruca was using the CC credit card for purchasing items for personal use. In this way, she had embezzled several thousand dollars and had paid to herself unauthorized excess wages. The CC had notified its insurer of these events and the insurer, after analysing the file, paid to the CC an amount of $19,108 pursuant to employee dishonesty coverage. However, concurrently to this claim, and unbeknownst to the insurer, the CC instituted legal proceedings against Maruca on March 29, 2012 to claim compensation from her for the faults she had committed. These proceedings were settled in December 2013 through an agreement entitled “Receipt, release, waiver, discharge and transaction”, the relevant excerpt of which reads as follows: “In consideration of all the foregoing, and under reserve of all the terms and conditions of the present Transaction, the parties hereby renounce immediately and definitely to all claims, rights, recourses, rights of action, sums and payments that they had, have or may have now or in the future, from or against her other, and hereby give one another a mutual, reciprocal, full, final, complete, definitive, unconditional and immediate release, discharge and exoneration of and from any and all past, present and future claims, that they had, have or may have, now or in the future, directly or indirectly relating to or arising from the litigation under Quebec Court number 500-22-191245-128.” After paying the indemnity, the insurer Northbridge, unaware of the existence of this lawsuit, introduced its own lawsuit against Maruca in August 2014, claiming, as is customary, the indemnity paid, and impleaded the CC in order for it to recover its $500 deductible. Now, since the December 2013 transaction included a final release respecting any claim “directly or indirectly relating to or arising from the litigation under Quebec court number 500-22-191245-128”, the judge ruled that Northbridge, as subrogated party, could not have more rights than its insured. In the case under review, in each of the lawsuits, namely, the first lawsuit of the CC, in 2012 and that of Northbridge in 2014, amounts were claimed to compensate the harm resulting from the same faults, that is, the illegal use of the credit card of the CC and the unauthorized payment of additional wages. The allegations as to the dates on which the faults were committed and discovered were also the same in each of the two files. The judge therefore ruled that the amounts claimed in Northbridge’s file were identical or less that those claimed in the lawsuit of the CC, which had concluded in 2013. Accordingly, Northbridge’s lawsuit was dismissed. As shown by the above judgment of the Court of Québec, the failure to notify the filing of proceedings concerning the same events as those on which the claim for indemnity to the insurer and the fact that the case was settled without having informed the insurer resulted in the insurer losing its rights under legal subrogation and being unable to obtain compensation for the indemnity it paid pursuant to the insurance contract. This time, the consequences were even more serious for the CC that the simple risk of premium increase or non-renewal of the insurance policy; indeed, Northbridge, having lost its rights due to the fault of the CC, instituted proceedings against the CC, claiming the repayment of the indemnity paid as well as the costs related to the proceedings.5 CONCLUSIONIt is therefore essential to notify your insurer of the existence of any element which may give rise to a claim under your insurance coverage and of any step toward a settlement related to such event. In so doing, you will preserve your good relations with the insurer and limit your risk of legal and financial complications. Better safe than sorry! 1 Art. 2470 par. 1 of the Civil Code of Québec, RLRQ c. C 1991 (hereinafter referred to as the “CCQ”). 2 Art. 2470 par. 2 CCQ. 3 Art. 2474 par. 1 CCQ. 4 Société d’assurance générale Northbridge v. Maruca, 2014 QCCQ 10083 (C.Q.). 5 Société d’assurance générale Northbridge v. Centre de la petite enfance St-Andrew’s, no. 500-22-219992-156 (C.Q.).
Bill 42 and the reorganization of the Quebec labour-related institutions
Last June 12, Bill 42, entitled « 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 Tribunal1 » (the « Loi Act to group the CÉS, the CNT and the CSST and to establish the ALT » or the “Act”), received Royal Assent. The broad lines of this Act are unequivocal: its purpose is to reorganize the labour-related administrative structures as they currently exist. ESSENTIALLY, THE ACT PROVIDES FOR THE FOLLOWING: the Commission de l’équité salariale (“CÉS”), the Commission des normes du travail (“CNT”) and the Commission de la santé et de la sécurité du travail (“CSST”) will be grouped into a new single administrative body named the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”); the Commission des relations du travail (“CRT”) and the Commission des lésions professionnelles (“CLP”) will be grouped into a single tribunal named the Administrative Labour Tribunal (“ALT”). The new structures are expected to be operational as of January 1, 2016, the date on which the main provisions of the Act come into force. THE COMMISSION DES NORMES, DE L’ÉQUITÉ, DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL This new commission will group together three bodies with very different purposes, even though they all possess inspection and investigative powers: the CSST, which manages the compensation scheme for workers having suffered from workplace injuries and is responsible for the application of the Act Respecting Industrial Accidents and Occupational Diseases (“AIAOD”), the Act Respecting Occupational Health and Safety (“AROHS”) and their regulations; the CNT, which is responsible for ensuring compliance with the Act Respecting Labour Standards (“ARLS”) and its regulations and, if necessary, instituting the administrative, civil or regu¬latory proceedings necessary to ensure employer compliance with the Act or claim amounts due to employees; the CÉS, which is responsible for overseeing the job assessment process to ensure pay equity between men and women within an enterprise. In the future, employers will deal with one organization, the CNESST. However, due to the distinctive character of the missions entrusted to the CNESST, it would not be surprising if, in fact, divisions for occupational health and safety, labour standards and pay equity were created. Furthermore, as noted by the Conseil du patronat du Québec (“CPQ”) in its comments on Bill 422 [TRANSLATION] “[m]anagement of the new commission will inevitably have to take the appropriate measures to avoid any conflict with respect to potentially related issues in the application of different regimes.” The CPQ particularly refers to situations of psycho¬logical harassment, which can be the subject of both a labour standards claim and an employment injury claim and which must satisfy different criteria in both cases. The CPQ adds that [TRANSLATION] “[p]revention of conflicts of interest will also be necessary within the legal departments of the new commission, to the extent that certain lawyers employed by this organization will be called upon to represent employees pursuant to the Act Respecting Labour Standards.”3 THE ADMINISTRATIVE LABOUR TRIBUNAL The Act provides that the ALT acquires the rights and assumes the obligations of the CRT and the CLP,4 which themselves also serve very different purposes. The CRT has jurisdiction regarding proceedings instituted under many labour related laws such as the Labour Code, the ARLS and the Act Respecting Labour Relations, Vocational Training and Workforce Management in the Construction Industry while the CLP has jurisdiction regarding proceedings instituted under the AIAOD and the AROHS. To reflect this diversity, the Act specifically provides that the ALT shall be separated into four divisions: the labour relations division ; the occupational health and safety division ; the essential services division ; the construction industry and occupational qualification division. The Act provides for a standardization of the applicable procedure before the ALT and confers very broad powers to its president. For example, the Act provides that the president of the ALT will assign its members to one or more of its divisions and may reassign or temporarily assign a member to another division.5 The provisions pertaining to the assignment of a member to a section of the ALT are very important. CLP members have obviously developed medico legal expertise focused on employ¬ment injuries that members of the CRT have not. Conversely, CRT members have developed an expertise, particularly in the areas of employer/union labour relations and dismissals. Although the Act provides that the president is to take specific knowledge and experience into account in assigning work to members,6 nothing requires him to do so. It will therefore be interesting to see whether the president of the ALT will favour a generalist approach whereby members of the ALT will be assigned to several divisions, or if, on the contrary, specialization of the members of the new tribunal will be preserved by assign¬ments to specific divisions. For example, under current law, an employee who claims having been dismissed or having experienced reprisals for having suffered an employment injury may file a complaint before the CSST pursuant to section 32 of the AIAOD. The decision of the CSST can subsequently be contested before the CLP. However, the provisions of the Act do not specify, for example, how such a complaint will be dealt with in the future. Will the complaint be heard before a member of the occupational health and safety division of the ALT or by a member assigned to the labour relations division? Another example of a situation that the Act does not definitively address is that of the rules of evidence and procedure applicable before the ALT. Currently, the CRT and the CLP have separate and distinct rules of evidence and procedure. The Act provides for a single procedure for proceedings before the ALT.7 However, it will have to be supplemented by the adoption of regulations containing specific rules of evidence and procedure before the ALT, the ins and outs of which we still know little about. However, these new rules may considerably affect the current manner in which such proceedings are currently conducted. The Act also states that in the context of a hearing, an ALT member may visit the premises or order that an expert report be prepared by a qualified person who he designates to examine and assess the facts of a matter presented to him.8 Therefore, the adjudicator may designate and request that a third party provide him with an opinion on, and assessment of, the facts before him. The CLP currently possesses these powers,9 but the CRT does not. The Act does not specify whether this power will be limited to the occupational health and safety division or whether it will be applicable to all divisions. The generalization of this power is likely to have significant impacts on the way in which labour-related disputes are adjudicated before the new administrative tribunal. OTHER ASPECTS OF THE ACT TO GROUP THE CÉS, THE CNT AND THE CSST AND TO ESTABLISH THE ALT The Act also provides for the following changes: The CNT is currently exclusively funded by employer contributions. The surpluses accumulated by the CNT in accordance with the provisions of the Act,10 which represent tens of millions of dollars, will be paid into the Consolidated Revenue Fund and credited to the Generations Funds, the aim of which is to reduce public debt. The ALT will be mostly funded by employer contributions, particularly those paid in accordance with the AIAOD and the AROHS.11 A worker whose employment injury claim is the subject of a cost sharing application by the employer will now be entitled to intervene in the context of such an application.12 At first glance, since the transfer of amounts attributed to a file following an employment injury has no effect on the benefits received by a worker, the worker has little or no interest in intervening in such a dispute and this new right can only serve to burden the cost sharing process. In a unionized environment, the deadline to file a complaint under section 47.2 of the Labour Code, which deals with complaints regarding union wrongdoing, is specified. The Act provides that the employee must file a complaint with respect to any such wrongdoing “within six months of the employee becoming aware of the actions giving rise to the complaint.”13 However, the Labour Code currently provides that such a complaint must be filed within six months, without reference to the awareness of the action giving rise to the complaint. Due to the delays that can occur between when a decision is made with respect to an employee and the exercise by the employee of this right as provided under the Act, employers will have to ensure that the measures taken regarding said employee are well documented since a file may resurface several months after a decision is made. Under the Labour Code as it is currently drafted, a party seeking to file a decision of the CRT with the Superior Court for enforcement purposes must obtain the CRT’s permission. However, the Act eliminates this step and provides that the forced execution of a decision of the ALT is to henceforth be carried out “by the decision being filed with the office of the Superior Court”.14 CONCLUSION Despite the planned dissolution of the labour-related bodies as they are currently constituted, the Minister of Labour, Employment and Social Solidarity has stated that their services and missions will be maintained.15 It remains to be seen whether, in fact, the CNESST and the new ALT will really preserve the expertise developed by their specialized predecessor organizations. The adoption of specific rules of evidence and procedure applicable before the ALT should also be closely watched. 1S.Q. 2015, c. 15. 2 Conseil du patronat du Québec, « Commentaires sur le projet de loi n° 42 », April 2015, (French only) 3 Id., 11. 4Act to group the CÉS, the CNT and the CSST and to establish the ALT, sec. 255. 5 Id., sec. 83. 6 Id.7 Id.sec. 262 and 263.8 Id.sec. 419AIAOD, sec.429.40.10 Act to group the CÉS, the CNT and the CSST and to establish the ALT,sec. 240.11Id.,sec. 97 and following.12 Id.,sec. 113.13 Id.,sec. 131 and 132.14 Id.,sec. 51.15 Journal des débats de l’Assemblée nationale, 1st sess., 41st legis., May 21, 2015, “Adoption du principe du projet de loi n° 42 – Loi regroupant la Commission de l’équité salariale, la Commission des normes du travail et la Commission de la santé et de la sécurité du travail et instituant le Tribunal administratif du Travail”, 11:30 a.m. (Mr. Hamad), (French only).
An important decision of the Court of Appeal of Quebec changes the way the employer’s duty to accommodate applies to employment injuries
On June 15th, the Court of Appeal of Quebec, in Commission de la santé et de la sécurité du travail v. Caron,1 issued an important judgment that changes the law governing an employers’ duty to accommodate employment injuries. The Court in Caron held that it needed to intervene to harmonize the Act Respecting Industrial Accidents and Occupational Diseases (AIAOD)2 with recent Supreme Court of Canada jurisprudence regarding the reasonable accommodation of people with disabilities.3 Based on its analysis, the Court of Appeal held that where a worker is asserting his right to return to work and is seeking suitable employment, the employer must undertake an accommodation exercise consistent with the Charter of Human Rights and Freedoms4 (the Quebec Charter), up to the point of undue hardship. This decision marks a change in the law given that, up until now, the rehabilitation measures in the AIAOD were themselves considered to be accommodations. Under the pre-Caron case law, the Commission de la santé et de la sécurité du travail (CSST) and the Commission des lésions professionnelles (CLP)5 did not have the power to impose, recommend or suggest any kind of accommodation,6 and therefore these bodies generally refused to apply the provisions of the AIAOD in light of the Quebec Charter’s provisions.7. THE COURT OF APPEAL’S DECISION IN Caron This decision is likely to change the exercise that all stakeholders, including the CSST, employers, workers and, where applicable, their unions, must engage in when determining whether suitable employment exists. The noteworthy excerpts can be summarized as follows: At present, the AIAOD does not contain any measures of accommodation, and does not require that employers find suitable employment for a worker suffering from an employment injury. Parallel jurisprudence on the duty to accommodate requires employers to take the initiative and to find an acceptable accommodation for a worker who is disabled within the meaning of the Quebec Charter. A worker who continues to have functional limitations after an employment injury is clearly disabled in that sense. To avoid placing a worker disabled by an employment injury at a disadvantage when compared with workers whose disabilities result from a personal condition, the exercise that the employer must engage in to accommodate the worker must go beyond the mere application of the AIAOD’s provisions. Therefore, employers will now have to find an acceptable solution to accommodate workers whose employment injuries have caused functional limitations, and can no longer simply assert that there is no suitable employment available in their business. As part of the enforcement of the AIAOD’s provisions, the CSST and CLP have the power to evaluate whether the employer has engaged in the accommodation exercise, either before or after a suitable employment is identified. The accommodation process in which the employer must engage does not require that it changes the worker’s working conditions in a fundamental way; however, the employer must take part in the effort to reintegrate the worker in its business and, if possible, must seek a reasonable accommodation, even if that means restructuring the worker’s duties to enable him or her to work, unless this would cause undue hardship. Finally, since the duty to accommodate must form part of a comprehensive assessment of the situation, the one- or two-year period during which a worker can exercise his right to return to work under section 240 of the AIAOD is now, at best, just one factor to consider but which will not be decisive. Under the principles of accommodation enunciated by the Supreme Court of Canada, an employer can no longer prevent a worker from withholding suitable employment in its business based on a mechanistic application of that provision which relies on the expiry of the one- or two-year period in which the worker can exercise his or her right to return to work. Instead, in all cases, employers will have to show that they attempted to accommodate the disabled worker. If the CLP finds that the employer’s assertion that there is no suitable employment for a particular worker results from a violation of a Quebec Charter right, it can exercise the remedial powers granted by the Quebec Charter. COMMENTS In our view, this Court of Appeal’s decision will be of utmost importance to Quebec employers, because it will likely force them to change the way they manage employment injury cases. For the same reasons, the process of seeking suitable employment could become more complex and delicate than it already is. In every instance, employers will now have to show that they actively sought a reasonable accommodation before they can take the position that they have no suitable job for an injured worker. It will now be helpful, and perhaps even essential, to document such efforts carefully. As for workers and their unions, they will now have to cooperate in the process of seeking suitable employment. Indeed, while employers have a duty to accommodate, workers have a corollary obligation to accept the proposed accommodation, if it is reasonable. It will also be interesting to see how the CSST and CLP apply this Court of Appeal decision. Finally, the upcoming decisions of the Court of Appeal in two pending cases are worth watching,8 because the Court in Caron clearly stated that it might revisit the related issue of grievance arbitrators’ jurisdiction over workers’ rights under a collective agreement following a workplace accident.9 2015 QCCA 1048. CQLR, c A-3.001. See especially Hydro-Québec v Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000,  2 SCR 561, and McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l’Hôpital général de Montréal,  1 SCR 161. CQLR c C-12. Pursuant to 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, SQ 2015, c 15, as of January 1, 2016, these bodies will henceforth be called the “Commission des normes, de l’équité, de la santé et de la sécurité du travail” and the “Administrative Labour Tribunal”. See, for example, Mueller Canada Inc. v Ouellette,  RJQ 1397 (CA) at para 60; Gauthier v Commission scolaire Marguerite-Bourgeois, 2007 QCCA 1433 at para 68. See, for example, Caron and Centre Miriam, 2012 QCCLP 3625 and Tremblay and Automobiles Chicoutimi (1986) Inc., 2015 QCCLP 2278. Syndicat du préhospitalier (FSSS-CSN) v Fortier, 2013 QCCS 2480 (SC) and McGill University Non-Academic Certified Association (MUNACA) v Bergeron, 2013 QCCS 1175 (SC). Caron, at paras 47 and 91.
Reminder to employers : The deadline for complying with certain regulatory provisions for safe asbestos management expires June 6, 2015
In Quebec, it is possible to find materials and products containing asbestos in civil engineering works, construction materials, facilities and equipment in all types of buildings, whether industrial, commercial, public or residential. According to various sources, the need to adopt new standards on safe asbestos management arose particularly due to the fact that a significant number of buildings in Quebec dating back to the end of the 1980s may contain asbestos and are probably in need of renovation. In addition, several statistical studies have shown that the majority of cases of death due to occupational diseases recognized by the CSST for workers aged 45 and up were caused by asbestos.1 It is in the context of this factual backdrop that the Regulation to Amend the Regulation Respecting Occupational Health and Safety and the Safety Code for the Construction Industry2 came into force on June 6, 2013. It provides for the addition of sections 69.1 to 69.17 to the Regulation Respecting Occupational Health and Safety3 (the “RROHS”) and, among other things, introduces new standards for safe asbestos management in order to reduce workers’ exposure to asbestos dust. In view of the approaching two-year deadline of June 6, 2015 given to employers to comply with their obligations for locating flocking and heat insulating materials,4 the purpose of this article is to provide a brief overview of employers’ requirements under these new provisions of the RROHS. It should also be noted that the failure to comply with a provision of the Act Respecting Occupational Health and Safety5 (the “AROHS”) or any of its regulations can lead to regulatory liability.6 OBLIGATIONS RELATING TO FLOCKING AND HEAT INSULATING MATERIAL Under the new RROHS provisions, the employer, whether a tenant or owner of the workplace, is required to inspect every building built prior to February 15, 1990 to locate flocking, and every building built prior to May 20, 1999 to locate heat insulating material containing asbestos.7. “Flocking” is a mixture of friable materials which is sprayed over a surface, while “heat insulating material” is used as an insulator to cover a facility or equipment in order to protect against fire or to prevent heat loss.8 Flocking and heat insulating materials are presumed to contain asbestos in a concentration of at least 0.1%.9 The employer may however rebut this presumption by submitting verifiable documentary information or a sampling report in accordance with the criteria contained in the RROHS.10 Thus, the employer must conduct an initial inspection of flocking and heat insulating materials containing asbestos by June 6, 2015, and further inspections every two years thereafter, unless an exception applies.11 Such an inspection requires a [TRANSLATION] “careful examination” of the workplace.12 Where flocking or heat insulation material contains asbestos or is liable to produce asbestos dust emissions, the employer must, while taking into account the degradation and dispersal factors, remove it, enclose it entirely in a permanent structure resistant to fibres, coat it with or soak it in a binder, or cover it with materials resistant to fibres.13 REQUIREMENTS RELATING TO MATERIALS AND PRODUCTS CONTAINING ASBESTOS Since June 6, 2013, prior to undertaking any work that is liable to produce asbestos dust emissions, the employer must check for the presence of asbestos in the materials and products likely to contain it, unless it can show that the work to be carried out is not liable to produce asbestos dust emissions, specifically by means of verifiable documentary information or a sampling report.14 Depending on the availability of information, the employer must also check for the presence of asbestos when purchasing those materials or products.15 We note however that the RROHS states that gypsum panels and joint compounds manufactured after January 1, 1980 are presumed not to contain asbestos.16 Where an interior finish likely to contain asbestos may emit dust because of its state, the employer must repair it or remove it, taking into account the degradation and dispersal factors.17 The employer must also take the necessary measures to control asbestos dust emissions before undertaking work on materials or products containing asbestos, including flocking and heat insulating material. In this respect, the Safety Code for the Construction Industry requirements apply.18 Finally, the employer must train and inform the workers of the risks, prevention and safe working methods relevant to the work to be done prior to undertaking work liable to produce asbestos dust emissions.19 REQUIREMENTS RELATING TO RECORDING AND DISCLOSURE OF INFORMATION In addition, since June 6, 2013, the employer must keep a register containing the entries and documents required by the RROHS (including information on the inspection dates of the building, the location of flocking and heat insulating material, the nature of the work previously done and type of asbestos sampled) and make it available to the workers in the establishment and their representatives.20 As well, the employer must disclose the relevant entries in the register to any person who will be doing, or plans to do, work that could produce dust emissions, and that person must inform the workers who are likely to be exposed to asbestos dust.21 CONCLUSION Since this article only provides a brief overview of the new requirements for safe asbestos management, we would encourage employers to seek out additional information on these requirements, should they feel it is necessary. The authors are available to answer your questions. For any employers who may not yet have implemented these new requirements, they should act quickly in order to decrease the risk of facing potential regulatory liability in this regard. Lavery will keep you informed of any further significant developments. _________________________________________ 1 See, in particular, Équipe des études et analyses, Service de la statistique et de l’information de gestion, CSST, Portrait des lésions professionnelles chez les travailleurs de 55 ans et plus 2002-2011, March 2014, p. 34, online: http://www.csst.qc.ca/publications/200/Documents/DC200_1049_1web.pdf (site consulted April 21, 2015), “[TRANSLATION] A more detailed examination of occupational disease-related deaths between 2002 and 2011 demonstrates that 81% of such cases are due to asbestos (873 deaths)” and Équipe d’analyse, Service de la statistique, CSST, Portrait des lésions professionnelles chez les travailleurs de 45 ans et plus 1999-2008, May 2010, p. 38, online: http://www.csst.qc.ca/publications/200/Documents/DC200_1049web1.pdf (site consulted April 21, 2015), “Over the course of the last ten years studied, occupational disease-related deaths are mainly caused by asbestos (at least 7 out of 10 cases).” 2 (2013) GOQ II, 1999. 3 CQLR c S-2.1, r 13 (“RROHS”). 4 Regulation to Amend the Regulation Respecting Occupational Health and Safety and the Safety Code for the Construction Industry, supra, note 2, section 6. 5 CQLR c S-2.1 (“AROHS”). 6 We are referring, in particular, to section 236 of the AROHS. 7 RROHS, section 69.3. See also section 56 of the AROHS. 8 RROHS, section 69.1. 9 Ibid,, sections 69.2, 69.4 and 69.6. 10 Ibid,, sections 69.4 and 69.7. 11 Ibid,, section 69.8. 12 Commission de la santé et de la sécurité du travail, «Amiante», Foire aux questions (question 15), online: http://www.csst.qc.ca/prevention/theme/amiante/Pages/foire_aux_questions.aspx (site consulted April 21, 2015). 13 RROHS, section 69.9. 14 Ibid,, section 69.11. 15 Ibid. 16 Ibid,, section 69.10. 17 Ibid,, section 69.13. 18 Code de sécurité pour les travaux de construction, RLRQ c S-2.1, r 4; RSST, article 69.14. 19 RROHS, section 69.15. 20 Ibid,, section 69.16. 21 Ibid,, section 69.17.
Children are precious, and their health, safety and well-being are at the very heart of childcare providers’ responsibilities. Several actors work with or alongside children on a daily or occasional basis in order to provide them care and education. In selecting people who work with children, providers collect and use a great deal of information about them, including their studies, experience, qualifications and abilities. Detailed criminal record checks are generally performed as well. THE LEGAL OBLIGATIONS To ensure that people who work with young children or are regularly in contact with them do not have a problematic past (including a criminal record) connected with their duties, the legislator has laid out the obligations and powers of childcare providers. For example, the Educational Childcare Act1, (the Act) and the Educational Childcare Regulation2 (the Regulation) contain provisions specifically dealing with verifications of impediments. As a result, the educational childcare system has the benefit of provisions which enable it to request relevant information lawfully, even if it constitutes personal information. Parameters governing these verifications have also been enacted. The Regulation begins by providing that an applicant for a childcare or day care centre permit, or a person applying for recognition as a home childcare provider, must submit an application, and include a consent to a verification of the information necessary to establish whether an impediment exists. The applicant must also provide an attestation establishing that no impediment exists, or an attestation of information that may establish an impediment, as the case may be, for himself and each director or shareholder of the business.3 The concept of “impediment” is defined as “grounds for permit refusal set out in paragraphs 2 and 3 of section 26 and in the second paragraph of section 27 of the Act”.4 Those provisions are worded as follows: 26. The Minister may refuse to issue a permit if: […] (2) the applicant or a director or a shareholder of the applicant exhibits or has exhibited behaviour that could reasonably pose a threat for the physical or emotional safety of the children to whom the applicant proposes to provide childcare; (3) the applicant or a director or a shareholder of the applicant is charged with or has been convicted of an indictable or criminal offence related to the abilities and conduct required to operate a childcare centre or a day care centre; […] 27. Police forces in Québec are required to communicate any information required by regulation that is needed to verify the existence of an impediment under paragraph 2 or 3 of section 26. The investigation to that end must be concerned with any sexual misconduct, failure to provide necessities of life, criminal operation of a motor vehicle, violent behaviour, criminal negligence, fraud, theft, arson and drug or narcotic-related offence. […] In addition to the above, and subject to certain limitations, an applicant or permit holder must also ensure that “no person of full age working in the applicant’s or holder’s facility during the hours when childcare services are provided [...] has an impediment related to the abilities and conduct required to hold a position in a childcare centre or a day care centre [...]”5 The same rule, with the necessary modifications, applies to the home childcare coordinating office staff members “assigned to manage the office, to recognize or to monitor or provide technical and pedagogical support to the home childcare providers the office has recognized.”6 As for home childcare providers, they must meet requirements regarding the persons who assist them, and regarding any person of full age who lives in the residence where the care is provided.7 If the applicant or permit holder fails to show that no impediment exists, the Minister may refuse to issue a permit, or may suspend it, revoke it or refuse to renew it.8 The coordinating office may do the same in relation to the recognition of a home childcare provider.9 Accordingly, to determine whether an impediment exists, personal information must be collected, used and disclosed by various persons. Quite apart from the obligations set out in the Act and the Regulation, those persons must ensure that they comply with all the rules contained in legislation governing the protection of personal information, which we will not be addressing in this newsletter. ASSESSING THE IMPEDIMENTS Not all socially unacceptable behaviour reasonably poses a threat to the physical or emotional safety of children receiving childcare. Similarly, indictable and other criminal offences are not necessarily connected to the abilities and conduct required to run a childcare or day care centre. And it is only in such cases that the behaviour or past history can be a basis for refusing to issue a permit or recognition or for suspending, revoking or refusing to renew it. Unfortunately, the jurisprudence on this issue in the context of educational childcare is rather limited. However, we believe that decisions which deal more generally with criminal records in the employment context can serve as guidance. For example, in order to determine whether there is a connection between a person’s criminal record and the position, the courts agree that a concrete and detailed analysis of the situation must be carried out, and that one must avoid limiting the analysis to the general nature of the offence. From this perspective, and based on the circumstances, the following elements should be among those considered: the nature of the duties, having regard to the context in which the business operates and the services it provides; the characteristics specific to the clientele; the impact that the offence could have on the clientele, the reputation of the business or establishment, and the quality of the services provided; and the risk of reoffending.10 In our opinion, drawing from the general principles applicable to employment, the above factors should also be considered in determining whether an indictable offence or criminal offence is related to the abilities and conduct required to operate a childcare or day care centre. With the necessary adjustments, these principles can also serve as guidance in assessing behaviour to determine whether one could reasonably pose a threat for the physical or emotional safety of the children. Other criteria, such as the nature of the offence, the date of its commission and the sentence imposed, if any, should be taken into account as well.11 The people responsible for considering the issue of impediments must always avoid automatic decisions, and must examine the characteristics and implications of each case in an informed manner, weighing the information collected in relation to the person’s role in delivering the care. In doing so, they can refer to La vérification de l’absence d’empêchement dans les services de garde éducatifs,12 a 2004 publication of the Ministère de l’Emploi, de la Solidarité sociale et de la Famille. Although the document was written before the Act came into force, and although it cannot replace the applicable legislation and is not a formal reference source, it can help inform decision-makers’ thinking. In a recent decision13 about the dismissal of a childcare centre employee whose “attestation of information that may establish an impediment” mentioned the existence of [translation] “behaviour that might pose a risk” to children’s safety, the arbitral tribunal recalled certain principles and obligations applicable to the assessment of impediments: [TRANSLATION]  […] [The board of directors] has a duty to treat the person fairly, and must therefore demand the matter be the subject of an internal investigation whose findings are submitted to her in writing. In that investigation, the person must be given the opportunity to provide her version of the events. The childcare centre’s management can make a recommendation to the board, but the board is not required to follow it. It might decide to consult a lawyer to ensure it understands the legal aspect of the matter. It might decide to hear the person before making a decision. […]  The childcare centre’s board of directors should not have contented itself with a simple oral statement from the centre’s director, and then wrongly determined that it had no choice but to dismiss [the worker] in order to comply with a directive of the Ministère de la Famille, the nature of which was not specified […].  If it had acquainted itself with chapters 6 and 8 of the document entitled La vérification de l’absence d’empêchement dans les services de garde éducatifs, the board would undoubtedly had found criteria that it should have taken into account, such as aggravating factors, or, on the contrary, mitigating factors. In determining whether the conduct complained of constituted a genuine risk to the children’s safety, the board should have verified whether the incident was isolated or whether there was a re-offence, and should have taken the time that had elapsed since the incident into account, considered the quality of the employee’s work since she began with the centre, ascertained how cooperative she was with the investigation, etc. Lastly, it could have used the analytical table in the document, drawn on the table as inspiration for its own set of criteria to be used in weighing the pros and cons in order to make a fair, informed and reasoned decision.  A childcare centre’s board of directors is made up of volunteers. It depends on the centre’s administration for its information. If it is not adequately informed, it is difficult for it to fulfill its role fully. The remarks in the preceding paragraph therefore apply to the centre’s management as well […]. […]  In order to be fair, the procedure that the board must follow in such circumstances would best be inspired by the [TRANSLATION] “fairness principles” set out in the Ministère’s 2004 document: transparency; the right to make representations; impartiality and objectivity; confidentiality; diligence and caution; and the duty to manage responsibly and obtain adequate information.  The board has a duty to assess all aspects of the situation and determine, based on a fair procedure, whether the behaviour [the worker] is alleged to have committed constitutes a genuine risk to the safety of the children who frequent the childcare centre. It must therefore do its homework. [Footnotes omitted.] In light of these remarks from a case in which a person’s behaviour was assessed, but also in light of the principles discussed further above, it bears repeating that those who are responsible for ensuring that individuals who work alongside children in day care centres and childcare centres do not have an impediment must carry out that responsibility by taking the necessary time and consulting the resources necessary to make an informed decision, not one based on unjustified prejudice or social stigma stemming from past conduct or a past conviction. Unless each case is evaluated seriously, decision-makers might find their decisions challenged. They might also be the subject of legal proceedings, which could, among other things, reverse their decision, reinstate the employee, or award financial compensation. In our view, if the investigation is handled particularly badly, the decision-makers might, subject to certain legal protections, be found personally liable. _________________________________________ 1 CQLR, c. S-4.1.1. 2 CQLR, c. S-4.1.1, r. 2. 3 Subsections 10(7) and 60(13) of the Regulation. 4 Section 1 of the Regulation, “impediment”. 5 Section 4, para. 1 of the Regulation. 6 Section 4, para. 2 of the Regulation. 7 Subsection 60(13) of the Regulation. In addition, s. 6 of the Regulation lists the cases in which a permit holder or home childcare provider must ensure that a new consent to investigation and a new attestation are provided. 8 Sections 26 and 28 of the Act. 9 Subsections 60(13) and 75(4) of the Regulation. 10 In this regard, see, among other things, Syndicat québécois des employées et employés de service, section locale 298 et Oasis St-Damien inc., 2012 CanLII 99864 (QC SAT) at paras. 104 to 108. 11 See for example M.F. c. Centre de la petite enfance A, 2012 QCTAQ 09495. 12 Ministère de l’Emploi, de la Solidarité sociale et de la Famille, La vérification de l’absence d’empêchement dans les services de garde éducatifs by Éric Dufresne (Québec: Ministère de l’Emploi, de la Solidarité sociale et de la Famille, 2004). 13 Syndicat des travailleuses et travailleurs de la petite enfance de la Montérégie c. Centre de la petite enfance Vos tout-petits, 2014 CanLII 47169 (QC SAT).
Constructive dismissal revisited by the Supreme Court of Canada
Following the key judgments in Farber1 and Cabiakman2, the Potter3 judgment rendered on March 6, 2015 by the Supreme Court of Canada (the “Court”) emerges as another indispensable judgment in employment law. In this judgment, the Court decided that the administrative suspension with pay of an employee must be justified and reasonable, or otherwise it will, in most cases, constitute a constructive dismissal. THE CONTEXT Mr. Potter had been appointed to the position of Executive Director of the New Brunswick Legal Aid Services Commission (the “Commission”) for a 7-year term. Over the course of his term, his relationships at the Commission deteriorated to the point where the parties began to negotiate his departure. However, before an agreement could be reached, Mr. Potter took leave from his employment for health reasons. When he was about to return to work, the Commission suspended him with pay for an indefinite period and, without his knowledge, made a recommendation to the Minister of Justice that Mr. Potter’s employment be terminated for cause. Two months after the beginning of his suspension with pay, Mr. Potter, who was still unaware of the reasons for his suspension despite a written request for information on this subject, brought an action for constructive dismissal. The trial judge concluded that the Commission was under no obligation to provide Mr. Potter with work and, as a result, he had not been constructively dismissed. The Court of Appeal of New Brunswick confirmed the judgment. THE SUPREME COURT’S JUDGMENT The judgment of the Supreme Court of Canada was unanimous and the reasons, spanning over one hundred pages, were written by Justice Wagner, with the support of Justices Abella, Rothstein, Muldaver and Karakatsanis concurring. Justice Cromwell and Chief Justice McLachlin agreed with the judgment, but for different reasons. 1. UNJUST DISMISSAL: THE APPLICABLE GENERAL PRINCIPLES ARE REVIEWED Justice Wagner recognizes that the employment contract has a dynamic character and as a result, the Courts have adopted a flexible approach to deciding whether an employer has either manifested an intention to no longer be bound by the contract or to repudiate it all together. Justice Wagner recalls that a constructive dismissal can take two forms, namely (i) a dismissal resulting from a sole unilateral act which results in the substantial breach of an explicit or tacit essential condition of the employment contract or (ii) a dismissal which results from a series of acts which, taken together, demonstrate the employer’s intention to no longer be bound by the contract and which render the situation intolerable for the employee. These two forms of constructive dismissal each require distinct analytical processes. Where constructive dismissal results from a breach of an essential condition of the employment contract, two conditions must be satisfied: first, the employee must prove that a unilateral change was made by the employer which constitutes a violation of the employment contract and second, the Court must determine whether, at the time of the violation, a reasonable person in the same circumstances as the employee would have considered that there had been a substantial modification of an essential condition of the contract. However, where dismissal results from the conduct of the employer, the goal is to determine whether the employer’s actions, in light of all the circumstances, would cause a reasonable person to conclude that employer no longer wanted to be bound by the contract. It is not necessary to determine that there was any modification of the employment contract. This approach requires retrospective evidence of the overall attitude of the employer. 2. THE RIGHT TO SUSPEND FOR ADMINISTRATIVE REASONS IS NOT ABSOLUTE Justice Wagner holds that an employer does not have the absolute discretionary authority to refuse to provide an employee with work and adds that even if such absolute discretion did at one time exist, recent developments in employment law have resulted in the rejection of the existence of such discretion. With this position, the Court departs from the traditional rule at common law according to which “the obligation to keep an employee retained and employed did not necessarily import an obligation on the part of the employer to supply work.”4 For Justice Wagner, this traditional approach fails to take into account the importance of work in today’s society, and in the life of an individual: “Work is now considered to be “one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being” (Reference re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313, at p. 368). Thus, it is clear that the benefits derived from performing work are not limited to monetary and reputational benefits. [...]”5 Justice Wagner recognizes the residual right of the employer to suspend with pay, but imposes an obligation on the employer to establish that such a measure is justified by legitimate business reasons and that the judgment to suspend is both reasonable and justified in the circumstances, citing with approval the following passage from the Cabiakman judgment: “This residual power to suspend for administrative reasons because of acts of which the employee has been accused is an integral part of any contract of employment, but it is limited and must be exercised in accordance with the following requirements: (1) the action taken must be necessary to protect legitimate business interests; (2) the employer must be guided by good faith and the duty to act fairly in deciding to impose an administrative suspension; (3) the temporary interruption of the employee’s performance of the work must be imposed for a relatively short period that is or can be fixed, or else it would be little different from a resiliation or dismissal pure and simple; and (4) the suspension must, other than in exceptional circumstances that do not apply here, be with pay. [para. 62]”6 Justice Wagner adds that a rigid framework is not necessary to determine whether an administrative suspension is justified given that the accepted approach and the factors taken into consideration can vary according to the nature of the suspension and the circumstances. However, some factors will always be relevant, including but not limited to, the duration of the suspension, the fact that the suspension is with or without pay and the good faith of the employer, which includes the existence of legitimate business reasons. On this subject, Justice Wagner adds that one of these factors is, according to him, unavoidable, namely the existence of legitimate business reasons. Finally, Justice Wagner specifies that where the suspension is not reasonable and justified and, consequently, amounts to a breach of the employment contract, the Court must be satisfied that a reasonable person in the same circumstances would consider that it constituted a substantial modification of one of the essential conditions of the employment contract. Justice Wagner adds that in his view, this test will generally be satisfied in case of an administrative suspension: “ I would suggest that in most cases in which a breach of an employment contract results from an unauthorized administrative suspension, a finding that the suspension amounted to a substantial change is inevitable. If the employer is unable to show the suspension to be reasonable and justified, there is little chance, to my mind, that the employer could then turn around and say that a reasonable employee would not have felt that its unreasonable and unjustified acts evinced an intention no longer to be bound by the contract. Any exception to this rule would likely arise only if the unauthorized suspension was of particularly short duration.”7 Finally, note that Justice Wagner was of the view that the employer was not being forthright when it failed to provide the reasons justifying the administrative suspension. Such an omission can constitute a failure to act in good faith and an intention to conceal a dismissal. 3. THE REASONS OF JUSTICE CROMWELL It is interesting to note that for Justice Cromwell, it was not necessary to decide whether the contract of employment permitted the indefinite suspension of Mr. Potter. He is of the view that an employer can repudiate a contract other than by way of the breach of an important clause of said contract. The repudiation of a contract may also consist of “conduct which, when viewed in light of all the circumstances, shows that, in the mind of a reasonable person viewing the matter objectively, the employer did not intend to be bound in the future by the terms of the contract.”8 In light of all the facts considered as a whole, he concludes that the Commission no longer wanted to be bound by the employment contract with Mr. Potter and as a result, there was constructive dismissal. 4. CONCLUSION This judgment sheds new light on the notion of constructive dismissal and on the right of the employer to proceed with the suspension of an employee without pay for administrative reasons. We should first note that, while Justice Wagner does recognize a right to administratively suspend, it is a residual right under the employment contract and the exercise of this right is constrained. The unjustified or unreasonable exercise of the right to suspend an employee for administrative reasons can constitute a constructive dismissal regardless of whether we adopt the framework proposed by either Justice Wagner or Justice Cromwell. Their approaches and their analyses are different, but they arrive at the same conclusion regarding the ways in which a constructive dismissal can arise. It is important to note as well that almost without exception, the employer must inform the employee of the reasons for the administrative suspension, failing which the suspension will be considered to be unjustified and unreasonable and, consequently, would result in constructive dismissal. Finally, we note that a suspension for an indefinite period of time also seems to be problematic and, consequently, any administrative suspension should be for a determinate or determinable period of time. On the other hand, this judgment also raises a number of other questions: What happens if the contract provides explicitly that the employer has the right to suspend for administrative reasons or that it is under no obligation to provide work? What constitute “legitimate business reasons”? What happens to the employee who considers himself to have been dismissed while an investigation conducted during an administrative suspension ultimately absolves him of any responsibility: should he be considered to have resigned?Can we still consider that the employer had “legitimate business reasons”? At what moment can an employee who has been suspended for administrative reasons claim that he has been dismissed? This judgment of the Supreme Court of Canada illustrates the complexity of the question of constructive dismissal and confirms that the facts of each situation must be considered on a case-by-case basis. As a result, we are of the view that this judgment was rendered in a very specific situation where the Commission attempted to gain an advantage from a suspension with pay in hopes of putting pressure on its director to put an end to the negotiations regarding the termination of his employment. In fact, this suspension placed Mr. Potter in an unequal position vis-à-vis his employer whose primary intention was to terminate his employment, as mentioned by Justice Cromwell in his reasons. Finally, while this judgment comes out of the New Brunswick courts, it will be applicable in Quebec given the similarity of the common law principles and those applicable in Quebec both in matters of constructive dismissal and in suspension for administrative reasons, as was specifically mentioned by the Supreme Court of Canada. _________________________________________ 1 Farber v. Cie Trust Royal,  1 S.C.R. 846. 2 Cabiakman v. Cabiakman v. Industrial Alliance Life Insurance Co.,,  3 SCR 195 (hereinafter, “Cabiakman”). 3 Potter v. Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 (hereinafter, “Potter”). 4 Turner v. Sawdon & Co.,  2 K.B. 653 (C.A.). 5 Potter, at. para. 83. 6 Potter, at. para. 87. 7 Potter, at. para. 106. 8 Potter, at. para. 139.
Dismissal without cause makes its way to the Canada Labour Code: The Federal Court of Appeal decides
On January 22, 2015, the Federal Court of Appeal rendered an extremely important decision,1 unanimously holding that dismissal on a without cause basis does not necessarily constitute “unjust dismissal” under the Canada Labour Code (the “Code”).2 With its decision in Wilson v. Atomic Energy of Canada Limited, the Federal Court of Appeal has seemingly ended a debate which has persisted since the adoption of unjust dismissal legislation in the late 1970's. Indeed, this decision overturns a line of case law to the effect that federal employees could only be dismissed for just cause, lack of work or the elimination of the employee’s position. THE FACTS Atomic Energy of Canada Limited (“AECL”) is Canada’s largest nuclear science and technology laboratory. Wilson had been employed by AECL for 4 ½ years and in his most recently held position, he was the Procurement Supervisor and was not considered to hold a management position. In November 2009, Wilson was terminated without cause. AECL offered Wilson a severance package roughly equal to six months’ pay. Wilson refused the package and filed a complaint for unjust dismissal under section 240 of the Code which reads as follows: 240. (1) Subject to subsections (2) and 242(3.1), any person (a) who has completed twelve consecutive months of continuous employment by an employer, and (b) who is not a member of a group of employees subject to a collective agreement, may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust. (2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed. (3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority. [Emphasis ours] Wilson nonetheless remained on AECL’s payroll for a further six months, ultimately receiving the full amount of the severance package initially offered to him. An adjudicator was appointed to hear the complaint under the Code. The parties raised two issues before the adjudicator: 1. Was AECL entitled to lawfully terminate Wilson’s employment on a “without cause” basis; and, 2. If the answer to the first question is yes, did the severance package paid amount to a “just” dismissal? Wilson argued that the Code prohibits employers from dismissing an employee unless there is just cause. AECL submitted that dismissals without cause are not automatically unjust dismissals under the Code. The adjudicator agreed with Wilson, throwing his support behind the view that employees could only be dismissed for just cause, lack of work or the elimination of the employee’s position. AECL applied to the Federal Court for a review of the decision. The Court disagreed with the adjudicator and quashed the initial decision. Wilson then appealed to the Federal Court of Appeal. THE DECISION The Court’s ability to intervene to settle disputes in the case law of an administrative tribunal One point of interest in this case is the basis of the Court’s decision for intervening in hopes of addressing once and for all two conflicting streams of case law being followed by an administrative tribunal. Since the Supreme Court of Canada’s decision in Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles),3 it has been relatively trite law that the fact that a tribunal is rendering inconsistent decisions on a specific issue is not an independent justification for judicial review. In this context, the Court’s decision to intervene in this matter is rather surprising. Justice Stratas addressed this issue as follows:  In the case of some tribunals that sit in panels, one panel may legitimately disagree with another on an issue of statutory interpretation. Over time, it may be expected that differing panels will sort out the disagreement through the development of tribunal jurisprudence or through the type of institutional discussions approved in IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC),  1 S.C.R. 282, 68 D.L.R. (4th) 524. It may be that at least in the initial stages of discord, without other considerations bearing upon the matter, the rule of law concerns do not predominate and so reviewing courts should lay off and give the tribunal the opportunity to work out its jurisprudence, as Parliament has authorized it to do.  However, here, we are not dealing with initial discord on a point of statutory interpretation at the administrative level. Instead, we are dealing with persistent discord that has existed for many years. Further, because no one adjudicator binds another and because adjudicators operate independently and not within an institutional umbrella such as a tribunal, there is no prospect that the discord will be eliminated. There is every expectation that adjudicators, acting individually, will continue to disagree on this point, perhaps forever.  As a result, at a conceptual level, the rule of law concern predominates in this case and warrants this Court intervening to end the discord and determine the legal point once and for all. We have to act as a tie-breaker. [Emphasis ours] Given the persistent and seemingly irresolvable dispute among adjudicators on this issue of statutory interpretation, Justice Stratas concluded that the Court was entitled to intervene and the standard of review would be one of correctness.4 The Federal Court of Appeal therefore seems to be taking the approach that where disagreement on a point of law endures over an extended period of time with no end in sight, reviewing courts can and should intervene in the interests of maintaining the rule of law. Indeed, this seems to mark an important departure from earlier case law on the jurisdiction of higher courts to intervene in hopes of addressing conflicting administrative case law. Dismissal without cause under the Code After disposing of a preliminary objection based on the alleged prematurity of the initial motion for judicial review before the Federal Court, Justice Stratas, delivering the majority opinion of the Court of Appeal, ultimately dismisses the appeal. Agreeing with the Federal Court, the Federal Court of Appeal found that the Code permits dismissals without cause. The Court concluded that a dismissal without cause is not automatically “unjust” and that an adjudicator should examine the circumstances of each particular case in order to determine whether a dismissal is unjust.5 In reaching its decision, the Court analysed the relationship between the common law of employment and the Code. At common law, an employer can dismiss a non-unionized employee without cause, but is liable to provide reasonable notice or compensation for doing so. The Code, on the other hand, provides a complaint mechanism and remedies for unjust dismissal, without defining the meaning of “unjust”. The Court concluded that the relevant provisions of the Code do not oust the common law doctrine of reasonable notice. Rather, the Code supplements the common law and builds upon it. Simply put, the wording of the Code does not imply that an employee has a “right to a job” in the sense that any dismissal without cause is automatically unjust. On this point, Justice Stratas stated as follows:  But there is nothing in the Code or in its purpose that suggests that Parliament was granting non-unionized employees a “right to the job” or was trying to place unionized and non-unionized employees in the same position: protected from being dismissed without cause. To the contrary, subsections 230(1) and 235(1) expressly allow an employer to terminate an employment relationship even without cause and require that notice or compensation be given.  If Parliament intended to limit the right of an employer to terminate an employment relationship to cases where just cause existed, it could have said so quite explicitly. After all, before Parliament passed the provisions in issue before us, the Nova Scotia Legislature did just that. It amended its labour legislation to provide that an “employer shall not discharge … [an] employee without just cause”: Labour Standards Act, S.N.S. 1975, c. 50, section 4. […] [Emphasis ours] The Court reasoned that since the Code does not explicitly limit the right of an employer to terminate an employment relationship to cases where just cause existed, the common law doctrine of reasonable notice applied. Had Parliament intended to implement a legal order in which common law principles played no role, it would have said so in plain language. The Labour Code simply creates another forum besides the courts for hearing complaints of unjust dismissal and grants adjudicators remedial powers that common law judges do not have.6 The Court also addressed Wilson’s claim that if the court followed AECL’s reasoning, employers would be able to dismiss employees without cause, pay them an amount of money the employers think is adequate and leave the employees with no meaningful right of recourse under the Labour Code. The Court noted that this was simply not the case, stating instead that “[i]t will always be for the adjudicator to assess the circumstances and determine whether the dismissal, whether or not for cause, was unjust”.7 Justice Stratas and the Court relied on the adjudicator’s decision in Klein v. Royal Canadian Mint.8 While the adjudicator in Klein rejected the submission that the dismissal of an employee without cause was automatically unjust, he did not assume that the dismissal of an employee who had been paid a severance package was automatically just. The Court made it clear that “the fact that an employer has paid an employee severance pay does not preclude an adjudicator from granting further relief where the adjudicator concludes that the dismissal was unjust.”9 However, the Court was careful to note that an adjudicator under the Code does not have free reign to conclude that a dismissal is unjust on “any basis.”10 In determining whether a dismissal is just or unjust, adjudicators will need to look to well-established common law principles and arbitral cases concerning dismissal. CONCLUSION With this decision, the Federal Court of Appeal seems to have put an end to the decades-long debate over whether dismissal without cause necessarily constitutes unjust dismissal under the Code. Like employers in many provinces, federal employers can now terminate their employees on a “without-case basis”, provided they offer sufficient notice, pay in lieu thereof and severance pay, where applicable. Employers should nonetheless ensure that dismissed employees are treated fairly. Although not automatically unjust, a dismissal without cause can still be held to be unjust where reasonable notice, or a reasonable severance package, is not provided. If the dismissed employee files a complaint under the Code, it will be up to the adjudicator to determine whether a termination package is reasonable based on the circumstances of each case. Only time will tell what the real-world impact of this decision will be. However, at first glance, the Federal Court of Appeal has seemingly delivered an important victory for federally-regulated employers. As of the publication of this article, the appellant, Mr. Wilson, has not sought leave to appeal this decision to the Supreme Court of Canada. _________________________________________ 1 2015 FCA 17 (CanLII), http://canlii.ca/t/gg41h [Wilson]. 2 R.S.C., 1985, c. L-2. 3  2 SCR 756. 4 Ibid at para 57. 5 Ibid at para 62. 6 Ibid at para 74. 7 Ibid at para 94. 8 Klein v. Royal Canadian Mint,  C.L.A.D. No. 358. 9 Wilson, supra note 1 at para 99. 10 Ibid at para 100.
The dismissal of an emergency room employee for breach of confidentiality is confirmed
In a decision rendered on December 30, 20141, arbitrator Nathalie Faucher concluded that the dismissal imposed by a hospital centre on an employee for breach of confidentiality was well-founded. The employee, an administrative agent at the emergency room of the hospital centre, was dismissed for breaching her obligation of confidentiality. The employer stated that she had disclosed to a work colleague the fact that a patient had HIV. This colleague was a family member of the patient and had been unaware of his condition. The employer’s evidence established that the complainant had obtained the medical information through the hospital centre’s computer database, despite that she did not need to use the database in discharging her duties. It was also demonstrated that the complainant had been made aware of her confidentiality obligations and had undertaken to comply with these obligations by signing the code of ethics of the employer as well as an undertaking to preserve the confidentiality of patient’s identifying and medical information. In the reasons for her decision, the arbitrator took into account the wording of section 19 of the Act Respecting Health Services and Social Services, CQLR c S-4.2, which reads as follows: “19. The record of a user is confidential and no person may have access to it except with the consent of the user or the person qualified to give consent on his behalf. (…)” The arbitrator also took into account the fact that sections 5 and 9 of the Charter of Human Rights and Freedoms establish the right to confidentiality of information protected by professional secrecy and, therefore, the right of patients to expect that this information will be protected and cannot be disclosed to third parties. Moreover, the arbitrator considered that the nature of the information disclosed had an “extremely high degree of sensitivity”. Relying on a prior decision2, the Tribunal took the view that the fact that the breach of confidentiality had occurred internally did not make it less serious. For the arbitrator, the fault was twofold since not only did the employee breach the confidentiality of information, but she also obtained the information through the use of software which was not relevant to the discharge of her duties, particularly since the employee had already been notified that using this software constituted a fault and that she was liable to be sanctioned if she did so again. Finally, on the basis of the evidence heard, the arbitrator found that the “security” arguments advanced by the complainant to try to exonerate herself were not credible. The complainant had claimed that disclosure of the information was necessary to protect her colleague, out of concern that she may get infected while transporting the user. In conclusion, the arbitrator found that the conduct was sufficiently serious in nature to justify dismissal. Despite the complainant expressing remorse at the hearing, the arbitrator was not convinced that she understood the seriousness of her fault and that she would not repeat it. Therefore, the arbitrator saw no reason to intervene in the sanction imposed by the employer. _________________________________________ 1 Syndicat des travailleuses et des travailleurs du Centre de santé et de services sociaux de la région de Thetford (FSSS-CSN) et Centre de santé et de services sociaux de la région de Thetford (Karen Tombs), 2014 QCTA 1080. 2 Syndicat des travailleuses et travailleurs de l'Hôpital Charles-LeMoyne (CSN) et Hôpital Charles-LeMoyne, A.A.S. 2010A-104.
A corporation receives a hefty fine and two of its officers face jail time for violations of the Ontario occupational health and safety regulations
On January 13, 2015, New Mex Canada Inc. ("New Mex"), an Ontario corporation and employer in that same province, was sentenced to pay a fine of $250,000 while two of its officers each received 25-day prison terms after pleading guilty to several offences under the Ontario occupational health and safety legislation and regulations. The proceedings were instituted following a workplace accident in which a worker died after a fall. On January 18, 2013, the worker in question was moving merchandise in the workplace. He was operating a combination forklift/operator-up platform known as an order picker. The platform had been modified with an additional platform, supported by the forks of the vehicle, on which the worker was standing. The second platform had no guard rail and the employee was not wearing any fall protection equipment. The worker was found dead on the floor as a result of a blunt force trauma to the head. An investigation by the Ontario Ministry of Labour revealed that New Mex had committed several offences. In particular, the warehouse employees had received no occupational health and safety training, nor had they been provided with any fall protection equipment, contrary to the requirements of the applicable regulation.1 Ontario's Occupational Health and Safety Act2 provides for the possibility of a maximum prison sentence of 12 months for anyone who fails to comply with any of the provisions of the Act or the associated regulations. This decision clearly shows that the Ontario authorities are determined to enforce the penalties set out in occupational health and safety legislation. Recall that prison sentences are not included among the penalties set out at sections 236 and 237 of Quebec's Act respecting occupational health and safety.3 In addition, according to various recently published press releases, the Ontario Federation of Labour is putting pressure on authorities to file criminal negligence charges under the Criminal Code4 in addition to the aforementioned convictions in this case. Generally speaking, the penalties for a criminal negligence conviction are much more severe than the penalties under provincial legislation, reflecting the inherent seriousness of such an offence. An individual charged with criminal negligence causing death is liable, among other things, to imprisonment for life,5 while, for organizations, there is no limit to the amount of the fine for which they may become responsible.6 Lavery will keep you informed of further significant developments on this subject. _________________________________________ 1 Industrial Establishments, RRO 1990, Reg 851, s 85. 2 RSO 1990, c O.1, s 66. 3 CQLR c S-2.1. 4 RSC 1985, c C-46. 5 Ibid, s 220(b). 6 Ibid, s 735.
Hiring in the New Year? What to do when a new recruit overpromises and underdelivers?
A recent decision1 by the Commission des relations du travail (“CRT”) highlights the plight of an employer faced with an employee who oversold his abilities during the job interview and later proves incapable of delivering on his promises. In this case, Laurentian Bank Securities inc. (“Laurentian”) successfully defended against a claim for dismissal without good and sufficient cause filed by a former employee. The facts of the case are commonplace. The employee had been a highly successful Investment Adviser with Desjardins Wealth Management (“Desjardins”) for a number of years. During a job interview with the vice-president of Laurentian, the employee estimated that he could transfer to Laurentian 75% of his portfolio, the total of which was worth $37 million of assets under managements. His performance potential led to an offer of employment from Laurentian and enabled him to negotiate a generous compensation and benefits package. During the first days of his new employment, days which prove crucial from the perspective of client retention, the employee made minimal efforts to retain the client base he had built over the years and, ultimately, few clients transferred their assets to him at Laurentian. Several months into his employment, he was far from reaching his initial earnings objectives. The disparity between his performance and projected earnings became amplified with each annual performance review. Efforts made by Laurentian to support the employee’s progress – encouraging him to utilize his business development budget, prepare a business plan, etc. – proved unproductive. After three years of service with Laurentian, the employee was dismissed for a failure to meet job requirements. From the employee’s perspective, his lack of success was the result of a number of external factors unrelated to his abilities (for example, he was placed in an open-plan office that did not permit the requisite confidentiality to call his clients; he was denied a transfer to another branch; Laurentian hired the very Investment Adviser whose book of business he had bought several years earlier, and this new employee unfairly solicited his clients; he was defamed by his former Desjardins partner, which explained why his clients broke off their relationship with him after his transfer to Laurentian). Moreover, the employee raised his health condition as a mitigating factor; the pressure at work caused him to develop depression, which left him unmotivated to solicit new clients. The constellation of explanations given by the employee to rationalize his poor performance did not sway the CRT. Ultimately, the employee was regarded as an industry veteran, well aware of performance expectations. This factor appears to have been decisive in the CRT’s weighing of the evidence, as can be seen from a summary of its analysis below. In cases of administrative dismissal, it is the onus of the employer to demonstrate good and sufficient cause. In keeping with the principles developed under applicable case law, the CRT must verify that the employer’s action was not arbitrary, discriminatory or unreasonable, and that the employer fulfilled its obligations imposed by applicable case law. The CRT’s findings in respect of the applicable criteria are summarized below: Whether the employee was informed of the company’s policies and the expectations set by the employer The employee was experienced in the financial services industry and familiar with the job requirements of an investment adviser. Moreover, the goals set for him by Laurentian were standard for such a position. Under the circumstances, the CRT concluded that Laurentian’s expectations were reasonable and sufficiently transparent. Whether the employee’s shortcomings had previously been identified The employee was repeatedly informed, both formally and informally, that his performance was inadequate. He had even been notified in writing that he was required to prepare a business plan to improve his job performance. Whether the employee received the necessary support to address his shortcomings and achieve the performance objectives The employee received appropriate support from Laurentian in order to meet his objectives (e.g. by utilizing a business development fund, launching an advertising campaign, working alongside other advisers, etc.). Whether the employee received a reasonable time to adjust The employee was employed by Laurentian for three years and was advised of his shortcomings at least as early as his first annual evaluation. He benefited from a reasonable time to adjust his performance. Whether the employee had been advised that a failure to improve would lead to dismissal The employee could not claim that he did not see the dismissal coming. He was clearly informed that his job was in jeopardy following his second annual evaluation. The case serves to remind employers of the importance of setting firm and reasonable performance objectives early on in the employment relationship. Should a dismissal for lack of competence prove inevitable, what will serve the employer well in the event that litigation arises is evidence that the employee was advised of his performance deficiencies, that resources were offered to support the employee in realizing his objectives, and that the employee was notified that a failure to improve would jeopardize his employment. While the process may require time and patience, it must be followed to avoid possible liabilities stemming from an unfavourable ruling of unjust dismissal. _________________________________________ 1 Daniel Denis v. Valeurs mobilières Banque Laurentienne inc., 2014 QCCRT 0517.