Application de la Loi sur les contrats des organismes publics au secteur de la santé et ses cocontractants-en

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November 28, 2022

CNESST – Transfer of Costs Under Section 326 of the Act Respecting Industrial Accidents and Occupational Diseases: Important Decision from the Tribunal

Employers subject to the personalized rate or retrospective rate regime know how important it is to control the costs related to occupational injury cases in order to limit the impact on their annual premiums. One way to attain this objective is to apply for a transfer of costs under section 326 of the Act Respecting Industrial Accidents and Occupational Diseases. Indeed, the CNESST may, “on its own initiative or on the application of an employer, impute the cost of benefits payable by reason of an industrial accident to the employers of one, several or all units if the imputation under the first paragraph would have the effect of causing an employer to support unduly the cost of benefits due by reason of an industrial accident imputable to a third person or unduly burdening an employer.” Traditionally, in cases involving the undue burdening of an employer, the CNESST would not process applications for transfers of costs under section 326 as long as the end date of the transfer period remained unknown. This could be detrimental to an employer’s cash flow, especially if the application remained unprocessed and the situation continued to exist over several months, even worse, for years. The recent Corporation d’Urgences-santé1 decision could, in certain circumstances, provide employers with a tool to convince the CNESST to render decisions without an end date for the transfer period. In this file, where Lavery Lawyers represented the employer, the worker could not be temporarily assigned to light duties because of his caregiver status. At the time of the hearing, the employee was still acting as a caregiver and the Tribunal was not in a position to know when the impediment might end. When asked to rule on its jurisdiction and powers, the Tribunal accepted our proposal that the transfer be granted, but that it remains the CNESST’s responsibility to determine the end date of the transfer period. The tribunal ruled that such date ultimately corresponds to the date on which the worker ceases to be incapable of undergoing temporary light-duty assignment due to his caregiver status. Thus, in its decision, the Tribunal recognizes the employer’s right to benefit from a transfer of costs since January 1, 2022, as a result of the employee’s caregiver status. This allows the employer to reduce immediately its financial burden up and until the CNESST renders a decision to establish the date of the occurrence of the event giving rise to the end of the transfer. This is the first decision to be rendered on the issue. It opens the door to a number of possibilities, including requiring the CNESST to make a ruling on a cost transfer application before the full transfer period can be determined. However, this type of application with the CNESST will require case-by-case analysis, as certain conditions must be met for the application to be admissible. If you are dealing with a similar situation requiring special attention, do not hesitate to contact a member of our labour law department specializing in workers’ compensation matters. They will be able to assist you with any questions relating to the management of these cases, whether or not they are the object of litigation. 2022 QCTAT 4634

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July 14, 2022

Single-Use Plastics Prohibition Regulations: Impact on Businesses

On June 20, 2022, the federal government registered regulations that, as the name implies, prohibit (or restrict, in some cases) the manufacture, import and sale of certain single-use plastics that pose a threat to the environment. The Regulations will come into force on December 20, 2022, with the exception of certain provisions taking effect in the following months.1 Manufacturing, importing and selling certain single-use plastic products made entirely or partially of plastic, such as foodservice ware, checkout bags and straws, will be soon be prohibited. This regulation is expected to affect more than 250,000 Canadian businesses that sell or provide single-use plastic products, primarily in the retail, food service, hospitality and healthcare industries. The following is a comprehensive list of items that will be prohibited: Single-use plastic ring carriers designed to hold and carry beverage containers together2; Single-use plastic stir sticks designed to stir or mix beverages or to prevent liquid from spilling from the lid of its container3; Single-use plastic foodservice ware (a) designed in the form of a clamshell container, lidded container, box, cup, plate or bowl, (b) designed to serve or transport ready-to-eat food or beverages without further preparation, and (c) made from certain materials4; Single-use plastic checkout bags designed to carry purchased goods from a business and (a) whose plastic is not a fabric, or (b) whose plastic is a fabric that will break or tear, as the case may be, (i) if it is used to carry 10 kg over a distance of 53 m 100 times; (ii) if it is washed in accordance with the washing procedures specified for a single domestic wash in the International Organization for Standardization standard ISO 6330, as amended from time to time5; Single-use plastic cutlery that is formed in the shape of a fork, knife, spoon, spork or chopstick that either (a) contains polystyrene or polyethylene, or (b) changes its physical properties after being run through an electrically operated household dishwasher 100 times6; Single-use plastic straws that either (a) contain polystyrene or polyethylene, or (b) change their physical properties after being run through an electrically operated household dishwasher 100 times7. The main exceptions Single-use flexible plastic straws Single-use flexible plastic straws, i.e. those with a corrugated section that allows the straw to bend and maintain its position at various angles,8 may be manufactured and imported9. These flexible straws may also be sold in any of the following circumstances: The sale does not take place in a commercial, industrial, or institutional setting10. This exception means that individuals can sell these flexible straws. The sale is between businesses in packages of at least 20 straws.11 The sale is made by a retail store of a package of 20 or more straws to a customer who requests it without the package being displayed in a manner that permits the customer to view the package without the help of a store employee12; The sale of straws is between a retail store and a customer, if the straw is packaged together with a beverage container and the packaging was done at a location other than the retail store13; The sale is between a care facility, such as a hospital or long-term care facility, and its patients or residents14. The export of single-use plastic items - All the manufactured single-use plastic items listed above may be manufactured, imported or sold for export15. That said, any person who manufactures or imports such items for export will be required to keep a record of certain information and documents as appropriate for each type of plastic manufactured item16. Records of the information and documents will have to be kept for at least five years in Canada17. Conclusion: an opportunity to rethink common practices In the short term, businesses will need to start thinking about how they will replace the plastic manufactured items they use. To help businesses select alternatives to single-use plastic items, the federal government has released its Guidance for selecting alternatives to the single-use plastics in the proposed Single-Use Plastics Prohibition Regulations.18 According to this document, the aim should be to reduce plastics. Businesses may begin by considering whether a single-use plastic should be replaced or no longer provided. Only products that perform essential functions should be replaced with non-plastic equivalents. Stir sticks and straws can be eliminated most of the time. Another way to reduce waste is to opt for reusable products and packaging. Businesses are invited to rethink their products and services to provide reusable options. Reusable container programs (i.e. offering customers the option of using their own reusable containers) are a reuse option that businesses may want to consider, in particular to reduce the amount of plastic food containers. Only where reusable products are not feasible should businesses substitute a single-use plastic product with a recyclable single-use alternative. Businesses in this situation are encouraged to contact local recycling facilities to ensure that they can successfully recycle products at their end of life. Ultimately, charging consumers for certain single-use substitutes (e.g. single-use wooden or moulded fibre cutlery) may also discourage their use. Ibid, s. 1 Ibid, s. 3 Ibid, s. 6 Polystyrene foam, polyvinyl chloride, plastic containing black pigment produced through the partial or incomplete combustion of hydrocarbons or oxo-degradable plastic; Ibid. This standard is entitled Textiles – Domestic washing and drying procedures for textile testing; Ibid. Ibid. Ibid, ss. 4 and 5. Ibid, s. 1. Ibid, s. 4. Ibid, para. 5(2). Ibid, para. 5(3). Ibid, para. 5(4); According to Guidance for selecting alternatives to the single-use plastics in the proposed Single-Use Plastics Prohibition Regulations, the goal is to ensure that people with disabilities who need flexible single-use plastic straws continue to have access to them at home and can carry them to restaurants and other premises. Ibid, para. 5(5). Ibid, para. 5(6). Ibid, para. 2(2). Ibid., s. 8 Ibid, para. 9(1). https://www.canada.ca/en/environment-climate-change/services/managing-reducing-waste/consultations/proposed-single-use-plastics-prohibition-regulations-consultation-document.html

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June 14, 2022

Confinement in an institution: a judge must intervene where evidence is insufficient

In a judgement rendered on June 3, 2022,1 the Court of Appeal of Quebec reiterated that a judge who has an application for confinement in an institution before them must inform the parties when they consider that the psychiatric reports filed are insufficiently detailed. In these circumstances, the Court must allow the parties to remedy deficiencies in the evidence rather than dismissing the application. The Court of Appeal based its reasoning on the following articles: Article 268 of the C.C.P.2 allows a judge to draw a lawyer’s attention to any deficiency in the proof of procedure and authorize the parties to remedy it, especially when the judge notes that the insufficient evidence concerns an essential element and could affect the outcome of the dispute. Article 50 of the C.C.P. gives judges the power, even on their own initiative, to require the attendance of witnesses or the presentation of evidence. Given the importance for a judge to make an informed decision, both with respect to a patient’s personal integrity and in assessing the danger they may pose to themselves or to others, the Court of Appeal considers that a judge has an obligation to exercise their discretionary power and require the attendance of one or even both psychiatrists who signed the reports filed in support of an application. In 2009, the Court had previously concluded that a judge in charge of ruling on an application for confinement in an institution is at liberty to [translation] “report, at the time of the hearing, that the references indicated in two sections of the form used by physicians to prepare a psychiatric examination report for an order of confinement in an institution—one concerning the reasons and facts upon which the physician has based their opinion and the other the assessment of the seriousness of the condition and its likely consequences for the patient and for others—appear to them to be insufficient.”3 It appears that this issue has been taken a step further, as the Court has concluded that the discretion granted by articles 50 and 268 of the C.C.P. must be exercised in order to give the health institution applying for confinement the opportunity to complete its evidence. Centre intégré de santé et de services sociaux de l’Outaouais v. J.L., 2022 QCCA 792 Code of Civil Procedure, CQLR c. C-25.01. (C.C.P.) Centre de santé et de services sociaux Pierre Boucher v. A.G., 2009 QCCA 2395, para. 38.

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April 23, 2020

Managing Employment Injuries in the Age of COVID‑19

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

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