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On May 4, 2017, the Senate passed the Act to prohibit and prevent genetic discrimination (Genetic Non-Discrimination Act), which came into force on the same date. This Act also amended the Canada Labour Code and the Canadian Human Rights Act. The new Act aims to regulate the use of genetic tests, namely, tests that analyze the DNA1, RNA2 or chromosomes of a person for predictive or monitoring purposes or for establishing a diagnosis or prognosis, mainly within a contractual framework. It prohibits anyone from requiring an individual to undergo a genetic test as a condition of providing goods or services to that individual and entering into or continuing a contract or agreement (section 3). Furthermore, refusing to provide this individual with goods or services or enter into or continuing a contract with this person on the ground that he or she refused to undergo a genetic test or disclose the results thereof is prohibited (section 4). Finally, the new Act prohibits any person who carries out the contractual activities referred to in the Act from collecting, using or disclosing the results of a genetic test without the consent of the person who underwent it (section 5). These prohibitions do not apply to health care practitioners in respect of an individual undergoing the genetic test to whom they are providing health services or to persons who conduct medical, pharmaceutical or scientific research in respect of an individual who is a participant in the research. The Act creates penal offences and provides that every person who violates the above-mentioned sections 3 to 5 is liable to fines not exceeding one million dollars and imprisonment for a term not exceeding five years, depending on the nature of the proceedings chosen by the prosecuting party (indictment or summary proceedings). Amendments to the Canada Labour Code In Québec, the Canada Labour Code only applies to businesses under federal jurisdiction pursuant to the Constitution Act (1867). For businesses governed by this Code, the Genetic Non-Discrimination Act amends the Canada Labour Code to provide that no person may require an employee to undergo a genetic test or disclose the results of a genetic test he or she underwent, along with the corollary right of the employee to refuse to undergo a genetic test or to disclose the results thereof (sections 247.98(2) and (3) of the Code). The Canada Labour Code is further amended to prohibit an employer from dismissing, suspending, laying off or demoting an employee, imposing a financial penalty on him or her, or refusing to pay his or her remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights, have worked or taking any other disciplinary action against an employee or threaten to do so on the ground that he or she refused a request by the employer to undergo a genetic test, to disclose the results thereof or on the basis of the results of a genetic test undergone by the employee (section 247.98(4)). The amendments made to the Canada Labour Code do not directly prohibit an employer from refusing to hire an applicant on the ground that the applicant refused to undergo a genetic test or disclose the results thereof: this is covered by the amendments made by the Genetic Non-Discrimination Act to the Canadian Human Rights Act, which is discussed below. The amendments made to the Canada Labour Code further prohibit a third party from disclosing the existence or the results of genetic tests to the employer without the employee’s consent, in addition to prohibiting employers from collecting or using the results of a genetic test without the written consent of the employee who underwent the test. An employee can file a complaint with an inspector if he or she considers that his or her employer violated the new section 247.98 (4) of the Canada Labour Code. Following that, the inspector will convene a conciliation session to attempt to settle the complaint. If the conciliation fails, the complaint can be referred to an adjudicator, who then has jurisdiction to issue various orders of the same nature as those provided for under other provisions of the Canada Labour Code in the context of a dispute. The amendments to the Canadian Human Rights Act The Genetic Non-Discrimination Act adds “genetic characteristics” to the prohibited grounds of discrimination set out in section 3 of the Canadian Human Rights Act. Although this concept is not defined in the Act, the legislative summary regarding the passing of the Genetic Non-Discrimination Act indicates that “[g]enetic testing refers to the process of analyzing a person’s genes to identify specific traits or markers. These traits have been referred to as a person’s “genetic characteristics”. Furthermore, a provision is added to section 3 of the Canadian Human Rights Act whereby a distinction based on the refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test, is deemed to constitute discrimination on the basis of one’s genetic characteristics. This addition to section 3 of the Canadian Human Rights Act will cover refusal to hire which, as noted above, is not specifically provided for in the amendments made to the Canada Labour Code. Conclusion The Act passed by the federal government aims to protect the public in light of the significant and increasingly rapid technological advances in the field of genomics. However, its scope is somewhat restricted since the Canada Labour Code only applies to federal businesses, while the application of the Canadian Human Rights Act is restricted to activities falling under federal jurisdiction in accordance with the Constitution Act (1867). The legislative summary mentions that the debates surrounding the passing of the Genetic Non-Discrimination Act raised many questions as to whether the legislation constituted a legitimate exercise of federal powers or whether the federal government was encroaching on the legislative authority of the provinces in respect of property and civil rights. Accordingly, it is possible that proceedings will be instituted, seeking to have portions or even the entirety of the Genetic Non-Discrimination Act declared unconstitutional.3 However, such debates should not affect the constitutionality of the amendments to the Canada Labour Code and the Canadian Human Rights Act, which only apply to businesses under federal jurisdiction. Deoxyribonucleic acid. Ribonucleic acid. A notice was published stated that “a reference to the Court of Appeal would provide the Court with an opinion on the constitutionality of the law on non-discrimination in genetics”.
On November 24, 2015, the Québec Court of Appeal rendered a much anticipated judgment in the case of Université McGill v. McGill University Non Academic Certified Association (MUNACA)1 (“McGill”). In this judgment, the Court dispelled the ambiguity that has existed for several years in the case law regarding the grievance arbitrator’s jurisdiction in disputes regarding the interpretation and application of the provisions of collective agreements as they pertain to an employee’s return to work following an industrial accident or occupational disease, within the meaning of the Act Respecting Industrial Accidents and Occupational Diseases (“AIAOD”).2 In this case, the Court had to consider the following issues: can the parties to a collective agreement provide employees with more beneficial conditions than those contained in the AIAOD? And if so, who has jurisdiction to hear and render decisions regarding disagreements arising from such contractual provisions? Finally, the Court had to determine whether the collective agreement between the parties in this case contained a provision which offers greater protection than the statute. CONTEXT OF THE McGILL CASE An employee suffered from a permanent functional disability following an employment injury. The Commission de la santé et de la sécurité du travail3 (“CSST”) found that that disability prevented him from continuing to work in the same position he held prior to the injury, and therefore identified suitable alternative employment elsewhere in the labour market, since such employment was not available with his employer. After temporarily assigning the employee to light work, the employer terminated his employment nearly five years after the CSST had identified suitable alternative employment on the grounds that such employment still did not exist within the employer’s organization. The collective agreement between the parties also provided that [TRANSLATION] “where an employee becomes able to carry on his employment again, but has a permanent functional disability that prevents him from continuing to hold his previous employment, he shall be reassigned, without a posting, to another position suitable for his health condition, based on the available positions needing to be filled.” The employee filed grievances contesting the employer’s decision to terminate his employment claiming that, notwithstanding the CSST’s finding that suitable employment did not exist within the employer’s organization, he should be offered another position. The employer raised an objection to the arbitrator’s jurisdiction, arguing that [TRANSLATION] “where the worker was the victim of an industrial accident leading to a permanent functional disability, the arbitrator does not have jurisdiction over the worker’s ability to carry on employment with his employer.”4 The parties agreed to deal with this issue as a preliminary matter and the arbitrator held that the jurisdiction conferred on him by section 244 of the AIAOD to resolve the terms of the return to work [TRANSLATION] “does not include the jurisdiction to decide on the employee’s ability to carry on employment following an employment injury — an issue that is reserved for the CSST and the Commission des lésions professionnelles (“CLP”) on appeal.”5 Therefore, he allowed the employer’s objection and declined jurisdiction, without ruling on the merits of the grievances which, among other things, contested the employee’s termination. The union sought judicial review of this decision to the Superior Court, which quashed the arbitrator’s award and referred the grievances back to him for a ruling on the merits.6 The employer appealed this judgment to the Québec Court of Appeal, which affirmed the decision of the Superior Court and dismissed the employer’s appeal. DECISION OF THE COURT OF APPEAL Like the Superior Court, the Court of Appeal found that section 4 of the AIAOD permits the parties to a collective agreement to provide more beneficial provisions for employees than those set out in statute. Section 244 of the AIAOD does not limit the possibility of doing so. Therefore, the grievance arbitrator has exclusive jurisdiction to determine whether an agreement contains a clause which confers greater benefits than those set out in the AIAOD and, if so, to interpret and apply such a clause.7 For instance, the Court noted that a collective agreement could provide for more beneficial provisions which would: Extend the time period for exercising the right to return to work set out at section 240 of the AIAOD, thereby requiring the employer to reinstate the employee to his pre-injury employment or suitable employment, beyond the period prescribed by statute;8; Require the employer to offer or create suitable employment within its organization, if no such employment exists or is available; Require the employer to offer an employee who is incapable of resuming his pre-injury employment another position which is consistent with his residual abilities, even if such a position does not constitute “suitable employment” within the meaning of the AIAOD.9 The Court noted however that in exercising his jurisdiction the arbitrator remains bound by the findings made by the CSST or the CLP, where applicable, particularly as they pertain to the existence of an employment injury, the employee’s ability to resume his pre-injury employment, his functional disability, and what constitutes suitable employment.10 These findings are the background against which the arbitration award must be made. On the other hand, if the arbitrator concludes that the collective agreement does not provide for any additional benefits to the regime created by the AIAOD, he cannot claim jurisdiction to impose additional obligations on the employer, nor can an employee who is exercising the rights conferred on him by statute demand any greater rights. In such a case, the parties are and remain bound by the findings of the CSST and the CLP, where applicable.11 COMMENTS To summarize, according to the McGill decision, the grievance arbitrator has exclusive jurisdiction, first to determine whether a collective agreement confers more benefits on an employee than those provided for in the AIAOD and, if that is the case, to interpret and apply those provisions. In exercising this jurisdiction, the grievance arbitrator cannot reject, refute or dispute the findings made by the CSST or the CLP, and his intervention must be within the boundaries of the framework created by these organizations in accordance with the AIAOD. This decision therefore dispels the ambiguity12 which could have previously arisen, particularly from such decisions as Société des établissements de plein air du Québec v. Syndicat de la fonction publique du Québec13 and Syndicat canadien des communications, de l’énergie et du papier, section locale 427 v. Tembec, usine de Matane14, in which the courts upheld the decisions of grievance arbitrators granting the employer’s preliminary objections on the grounds that the arbitrators lacked the jurisdiction to call into question the decisions rendered by the CSST and the CLP in accordance with their exclusive jurisdiction. We note that the collective agreements in these two cases did not contain more beneficial provisions than the AIAOD on the right to return to work.15 Time will tell whether the Court of Appeal’s judgment in the McGill case has an impact on the negotiation of clauses in collective agreements providing for more beneficial terms and conditions than those contained in the AIAOD. However, in our view, disputes over the return to work of employees following an industrial accident or occupational disease must also be assessed from the perspective of the Court of Appeal’s judgment in the case of Commission de la santé et de la sécurité du travail v. Caron,16 which held that where an employee exercises his right to return to work and seeks suitable employment, the employer must engage in a process of reasonable accommodation in accordance with the Charter of Human Rights and Freedoms,17 up to the point of undue hardship. 2015 QCCA 1943. As of January 4, 2016, no application for leave to appeal to the Supreme Court of Canada had been filed. We would also like to draw your attention to the following decisions rendered by the Court of Appeal on the same subject: Syndicat des cols bleus regroupés de Montréal, section locale 301 v. Beaconsfield (Ville de), 2015 QCCA 1958, and Montréal-Est (Ville de) v. Syndicat des cols bleus regroupés de Montréal, section locale 301, 2015 QCCA 1957. CQLR c A-3.001. Since the coming into force of the Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal, S.Q. 2015, c. 15, on January 1, 2016, the CSST has been replaced by the “Commission des normes, de l’équité, de la santé et de la sécurité du travail” (“CNESST”) and the CLP has been replaced by the “Tribunal administratif du travail” (“TAT”). Comments at para 56 of the arbitration award (D.T.E. 2011T-582), reproduced by the Court of Appeal in the McGill decision, at para 10. Para 103 of the arbitration award, reproduced by the Court of Appeal at para 15. 2013 QCCS 1175. McGill decision, para 95. The time period provided for at section 240 of the AIAOD is either one or two years, depending on the circumstances. See, in particular, para 51. McGill decision, paras 73 and 74. Ibid., para 78. Ibid., para. 20. 2009 QCCA 329. 2012 QCCA 179. As noted by the Court of Appeal in the McGill decision, para 60. 2015 QCCA 1048. In this regard, we refer you to our previous publication on this decision, which you can consult by clicking here. CQLR c C-12.