Serious Illness Insurance Coverage: An Applicant Hides His True Health Condition in Order to Deceive the Insurer

January 25, 2024

Recently,¹ Justice Isabelle Germain of Quebec’s Superior Court ruled on a case involving insurance fraud in the matter of Paul-Hus v. Sun Life Canada, compagnie d’assurance-vie². This ruling illustrates that applicants must answer the insurer’s questions honestly; should an applicant try to mislead the insurer, he will have to face the consequences.

In this case, the plaintiff Daniel Paul-Hus (Paul-Hus) claimed an amount of $150,000 from Sun Life Canada by way of benefits as set out in the serious illness insurance policy taken out by his company (of which he was the sole shareholder and director) in 2015, along with $50,000 for the trouble and inconvenience caused by Sun Life’s refusal to honour its contractual undertakings.

Paul-Hus claimed that he suffered from amyotrophic lateral sclerosis (ALS) diagnosed on February 1, 2018. The claim form was submitted by him on August 16, 2018. Sun Life refused his claim since an assessment of his medical records revealed that his prior medical history was inconsistent with the information he had provided during a telephone interview on March 17, 2015.

Sun Life considered the contract null and void due to Paul-Hus’s false declarations while filling out the questionnaire he was required to complete when taking out the policy. Essentially, it was Sun Life’s position that Paul-Hus had not answered certain questions correctly in the questionnaire and that, if he had, the insurer would not have issued the serious illness policy.

It was brought into evidence that, during the telephone interview of March 17, 2015, Paul-Hus had to answer questions on his lifestyle habits, his current health condition and his prior medical history. Some of the questions in Sun Life’s medical questionnaire sought to ascertain whether Paul-Hus felt weakness in his arm and whether a doctor had ever recommended any tests or if he was awaiting any test results. These questions were answered in the negative by Paul-Hus.

However, a review of the file reveals that these answers were inaccurate. The insurance policy was issued on March 17, 2015, while the evidence indicated that Paul-Hus had consulted his neurologist a few weeks before, on February 24, 2015, due to weakness in his left hand, the symptoms having appeared progressively since August 2013. At that time, additional tests were prescribed (cervical and brain imaging, magnetic resonance imaging and numerous blood tests). Nonetheless, in his Originating Application, Paul-Hus asserts that, at the time the policy was issued, he had not noticed or suspected any symptoms of disease and contends that, according to the doctors, the disease had developed suddenly.

In her judgment, Justice Germain reiterated the principles governing declarations of risk in the insurance sector, pointing out that false declarations can result in the nullification of the contract.³ However, in this case, the policy had been in force for over two years at the time of the claim for indemnification, so that the insurer was required to prove fraud in order to nullify the contract⁴ (Paul-Hus’s intention to hide his true health condition).

Justice Germain found that Sun Life had discharged the burden of demonstrating Paul-Hus’s fraudulent dealings. In addition to his medical records, Sun Life produced a recording of the telephone interview held on March 17, 2015, as well as a transcription of the interview. In the Court’s view, it was clear that Paul-Hus was under neurological investigation due to weakness in his left arm at the time he was completing the questionnaire. Although in his testimony at trial,⁵ he claimed not to know that this information could have had an impact on the insurer’s decision, Justice Germain did not side with this version. For Justice Germain, the evidence presented by the insurer demonstrated that it had been Paul-Hus’s intention to deceive Sun Life.

This being said, in accordance with the requirements of article 2408 C.C.Q., Sun Life had to demonstrate not only that it would not have covered this risk had it been aware of the new information resulting from the claim, based on its own underwriting standards, but that any reasonable insurer would have refused to issue the serious illness insurance policy under the circumstances. Sun Life also discharged this burden and completed this “evidence of materiality” by presenting the testimony of an underwriting expert.

Finally, and in addition to the above, Paul-Hus claimed that he had been diagnosed with amyotrophic lateral sclerosis (ALS), which he was unable to support with evidence. Under cross-examination, Paul-Hus admitted that he had never received any such diagnosis. Instead, he suffered from a lower motoneuron disease, which did not qualify as a “serious illness” under the policy.

In conclusion, in the Court’s opinion, the policyholder knowingly misled the insurer and falsified his risk assessment in order to obtain coverage. Moreover, given that Paul-Hus was not insurable for serious illness coverage in the eyes of a reasonable insurer, the Court concluded that the contract should be nullified ab initio and terminated.

This decision reminds us of how important it is for policyholders to answer insurers’ questionnaires honestly when making their initial declaration of risk :

[TRANSLATION] [55] In the Court’s opinion, Paul-Hus failed to answer the questionnaire sincerely. He did not act as would have a reasonable insured. He was aware of the importance of giving honest answers to the questions asked during the telephone interview. An insurance contract is one requiring the utmost good faith, particularly as far as the assessment of risk is concerned.

It is of interest that in this matter, Paul-Hus gave his testimony at the hearing by way of videoconference, which Justice Germain comments as follows:

[TRANSLATION] [49] One notes that, while giving his testimony via videoconference at the hearing, Paul-Hus referred to a document, which would be obtained and filed by Sun Life. The document is Sun Life’s letter of refusal of December 28, 2018, which he annotated with the words “good faith” and “answered no in all good faith I was not awaiting anything no results”. It seems odd, to say the least, that he should make the effort to write down these words as a reminder and should feel the need to repeat them several times during his testimony and when cross-examined.

[50] However, it is not enough to repeat that one acted in good faith to justify such omissions.

Paul-Hus appealed Justice Germain’s decision. Sun Life filed a Motion to Dismiss the appeal, which was dismissed on January 15th, 2024⁶. We will therefore have to wait and see what happens before the Court of appeal.

To sum up…

Insurance contracts are essentially characterized by the risks they cover and by what risks the insurer is willing to tolerate for a given premium. The Civil Code of Québec recognizes two specific instances in which the actual declaration of risk is fundamental: the initial declaration of risk before the contract is drawn up⁷ and any increase in the risk level during the term of the contract.⁸

The declaration of risk is essential to the insurer when it comes to accurately determining the extent of the risk and the premium that will be charged if the insurer agrees to provide coverage. As a general rule, the policyholder’s utmost good faith should be in evidence during the initial declaration stage given that this declaration paves the way for the prospective contractual relationship and its various terms and conditions. A policyholder will be deemed to have properly met their obligation “if the representations are such as a normally provident insured would make, if they were made without material concealment and if the facts are substantially as represented.”⁹

Since Policyholders are responsible for informing the insurer about any relevant factors that might change its risk assessment, i.e., a positive disclosure requirement, it stands to reason that the Civil Code sets out consequences in the event that this requirement is not fulfilled by the policyholder. A policyholder who makes false statements can therefore see his insurance contract nullified ab initio.¹⁰ In other words, the contract would be deemed to have never existed because the basis on which it rests, the initial declaration of risk, was flawed. It should also be noted that nullification will only be relative and that the insurer may elect not to assert it. Consequently, the Court, after having heard the evidence, cannot rule ex officio that the contract is null and void.

The insurer has two (2) years after the effective date of the contract to request nullification ab initio based on false statements or unwillingness to fully disclose risk.¹¹ Set against that backdrop, the insurer’s burden of proof amounts to demonstrating that the policyholder made false statements or concealed relevant facts.

Insurance fraud

Once the two (2) year window of opportunity has closed, the insurer faces an additional burden of proof: it must also demonstrate that the policyholder committed fraud.¹²

Fraud is distinguished from false declarations or concealment. Among other things, it results from the misrepresentation or omission of a fact in the knowledge that, if the truth were disclosed, the insurer would not issue the policy under the negotiated conditions. Therefore, the policyholder must have intentionally deceived the insurer in order to obtain an advantage that would not have otherwise been obtained.

Insurers, therefore, have a heavy burden of proof if the two-year threshold has been crossed. This is because fraud cannot be presumed; it must be established on the balance of probabilities.

Burden of proof

Whether or not the two (2) year period is still running, the insurer must (1) demonstrate that it would not have entered into the contract based on its own underwriting criteria; and (2) that a reasonable insurer in the same circumstances (i.e., dealing with false declarations, concealment or fraud) would have also declined to issue coverage.¹³

To recap, before the expiry of the two (2) year period, insurers seeking a contract’s nullification ab initio must prove that:

The policyholder made false declarations or concealed information when making the initial declaration of risk.
The insurer would not have entered into the contract based on its own underwriting criteria if it had been apprised of the concealed information.
A reasonable insurer in the same circumstances would have also declined to take on the risk.

After the expiry of the two (2) year period following the effective date of the policy, insurers requesting the contract’s nullification ab initio must prove that:

The policyholder made false declarations or concealed information when making the initial declaration of risk AND intended to deceive the insurer.
The insurer would not have entered into the contract based on its own underwriting criteria if it had been apprised of the concealed information.
A reasonable insurer in the same circumstances would have also declined to take on the risk.

Judgment handed down on October 3, 2023; the hearing was held on May 25 and 26, 2023.
2023 QCCS 3890; this ruling was appealed from (200-09-010693-239). A motion to dismiss the appeal was filed by the insurer and arguments were heard on January 15, 2024. That same day, the Court of Appeal dismissed the insurer’s motion to dismiss the appeal. The matter therefore continues before the Court of Appeal.
Art. 2410 C.C.Q.
Art. 2424 C.C.Q.
Via videoconference.
Paul-Hus v. Sun Life Canada, compagnie d'assurance-vie, 2024 QCCA 46
Arts. 2408 and 2409 C.C.Q.
Arts. 2466 et seq. C.C.Q.
Art. 2409 C.C.Q.
If the false statement deals exclusively with the policyholder’s age, the contract cannot be declared null and void (art. 2410 C.C.Q.) unless the policyholder’s actual age is outside the insurable range established by the insurer (art. 2411 C.C.Q.).
Art. 2424 C.C.Q.
Civil Code, art. 2424, para. 1 C.C.Q.
CGU compagnie d’assurance du Canada v. Paul, 2005 QCCA 315, para. 2 and art. 2408 C.C.Q.

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Judith Rochette
Partner, Lawyer
Pierre-Olivier Tremblay-Simard
Lawyer

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March 13, 2024

An insurer ordered to pay damages – The Court of Appeal intervenes

On February 12, 2024, the Court of Appeal of Quebec handed down its decision in Société d’assurance Beneva inc. c. Bordeleau,1 dealing in particular with the burden of proof incumbent on an insurer when it denies coverage on the basis of an insured’s intentional fault, and an award of damages against an insurer for breach of its duty of good faith. The facts This decision was rendered further to a dispute between Société d’assurance Beneva inc. (hereinafter the “Insurer") and some of its insureds, including Mr. Michel Bordeleau, the owner of a multi-storey rental building that was damaged by fire. He lived in one of the units with his parents. According to the uncontested expert evidence presented, the fire originated in one of the storage spaces in the basement of the building, which was assigned to a lessee couple. Access to the basement and all storage spaces was locked. 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The trial The trial judge, relying on the evidence, concluded that although the fire was intentional in nature, the Insurer had not discharged its burden of establishing the insured’s involvement in the fire. Taking this conclusion into account, she then proceeded to analyze the plaintiffs’ claim and to weigh the damages in light of the evidence and the limits of the insurance policy. In particular, she ruled in favour of Mr. Bordeleau’s claim for damages for the building, the amount of which was admitted. In addition, she ordered the Insurer to pay $15,000.00 in damages for nuisance and inconvenience caused by its conduct, which she considered faulty. This conclusion was based on the Insurer’s duty to act in good faith, to consider the facts and act on their basis, and to conduct a full investigation, duty which the Insurer had breached by failing to sufficiently follow-up on leads that could have identified who was responsible for the fire. In order to deny coverage, clear and compelling evidence of the insured’s involvement, going beyond mere suspicion, was necessary. Given the sometimes implausible and sometimes contradictory testimonies of the people met during the investigation, there was no such evidence. In other words, the claims adjuster had jumped to conclusions. In light of her conclusions, the trial judge dismissed the Insurer’s cross-application, which she deemed to be unfounded, without giving further reasons. The appeal The Court of Appeal first refrained from intervening in light of the Superior Court’s conclusions regarding the failure to demonstrate Mr. Bordeleau’s involvement in the fire. It did however intervene on the damages awarded for nuisance and inconvenience suffered by the insureds, and pointed out the following: [40] [translation] Firstly, apart from the strict mathematical calculation of the amounts payable, and perhaps other technical aspects not requiring the exercise of judgment, the processing of a claim is an obligation of means, not one of result. The fact that a court found at the end of a trial held many years after the incident that an insurer should have covered in the first place obviously does not mean that the insurer necessarily committed a fault other than its refusal to pay, making it civilly liable, let alone that it acted in bad faith. [41] In this case, there was nothing in the evidence to support a finding of fault or breach of the duty of good faith. [42] On the contrary, there is enough evidence to conclude that the investigation by the appellant and its experts, which led to the denial of coverage, was not botched. . . . In the opinion of the Court of Appeal, the evidence showed that the Insurer’s investigation had been done in a conscientious manner, in particular because it had transferred the claim file to a special investigative unit, mandated a fire origin and cause expert and external investigators, and interviewed many witnesses who could have provided information on the circumstances of the incident. Moreover, it had no allegations that the Insurer had failed to consider exculpatory evidence against its insured. In this context, although it took several years for the insured to obtain his due, with all the inconveniences of going through proceedings, the Insurer’s conduct could not be considered offending or revealing of bad faith. No damages could be awarded. Lastly, the Court of Appeal took a closer look at the question of the Insurer’s subrogation to the hypothecary creditor’s rights, which was little discussed in the judgment under appeal. Reiterating the fundamental principle in property and casualty insurance that the indemnification of an insured cannot result in enrichment, the Court of Appeal concluded that dismissing the Insurer’s cross-application would have such an effect. In addition to receiving an insurance benefit for the damages sustained, Mr. Bordeleau would also have had seen his hypothecary debt discharged. This would have given him a clear advantage. In this case, the benefit paid to the hypothecary creditor needed to be deducted from the damages claimed by the insured. The trial judge’s finding were thus revised accordingly. Conclusion Despite the clear principles addressed in this case, the Court of Appeal’s analysis points to practical difficulties that insureds and insurers can encounter when dealing with similar claims. It points to the coexistence of two factors that can be difficult to balance: First, the burden of proof where coverage is denied on the basis of the insured's intentional fault, and second, the insurer’s obligation of means in processing the associated claim. The dismissal of a coverage defence does not in itself warrant awarding damages. Société d’assurance Beneva inc. c. Bordeleau, 2024 QCCA 171

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March 5, 2024

Labour shortage: Revised ratios of qualified staff members in child care centres

At a time when the pandemic is continuing to have repercussions and we are experiencing a severe labour shortage, the educational childcare sector is facing unprecedented challenges. These circumstances have led to a reassessment of the standards relating to the presence of qualified childcare staff with children. The purpose of this bulletin is to shed light on the regulatory amendments that have been made to the Educational Childcare Regulation1 (the “ECR”), and more specifically to the required ratio of qualified staff members. Enacted by Order in Council 102-2024,2 these amendments came into force on March 1, 2024. Childcare providers should imperatively take cognizance of these regulatory amendments, as they will help them optimize their operations and improve their ability to respond to the challenges they are facing in attracting and retaining qualified childcare staff. Background On July 22, 2021, in response to the impact of the pandemic on educational childcare services, amendments were made to the requirements respecting the ratio of qualified staff members provided for in the ECR. During the first 9 months that followed the end of the public health emergency, the ratio was reduced to one qualified staff member out of three. During the 12 months after that, it was increased to one in two. The ratio applicable to childcare services was expected to return to pre-pandemic levels, or a ratio of two qualified staff members out of three, on March 1, 2024.3 However, faced with the labour shortage,4 which is particularly affecting the childcare sector, the government estimated that many childcare providers would not be able to comply with a qualified childcare staff ratio of two out of three, as was initially required for that date. As a result, the legislator amended the ECR once again so as to address ongoing problems and prevent service closures or disruptions. These amendments are summarized below. New ratio requirements for childcare services Section 23 of the ECR has been amended to reaffirm the general standard stipulating that the ratio of qualified childcare staff must be two out of three. However, section 23.1 of the ECR now provides for certain exceptions to the previously established rule on the ratio of qualified childcare staff. The notable exceptions are as follows: A ratio of one qualified childcare staff member out of two may be maintained during the provision of childcare until March 31, 2027. A ratio of one qualified childcare staff member out of three will be authorized while childcare is being provided during the first and last business hour of the permit holder’s core hours. A ratio of one qualified childcare staff member out of three will also be authorized during the first five years following: the initial issuance of a day care centre permit; the modification of a day care centre permit to increase, by 8 or more, the maximum number of children that may be provided with childcare in the permit holder’s facility; or the conclusion of a first subsidy agreement between the Ministère de la Famille and the holder of a day care centre permit, provided that the agreement was entered into after October 31, 2023. Conclusion The changes described above, came into force on March 1, 2024, are intended to address the current shortage of qualified staff in the childcare sector in Quebec. Although the temporary flexibility and the exceptions to the qualified staff ratio will help childcare providers guarantee the continuity and accessibility of their services, compliance with prescribed ratios is still mandatory. Note that failure to comply with these requirements may lead to administrative penalties or penal sanctions, as well as a decision by the Ministère de la Famille suspending, revoking or not renewing a permit. The members of the Lavery team are available to answer your questions. The information and comments contained herein do not constitute legal advice. They are intended solely to enable readers, who assume full responsibility, to use them for their own purposes. Chapter S-4.1.1, r. 2. Regulation to amend the Educational Childcare Regulation, O.C. 102-2024 (G.O. II) Regulation to amend the Educational Childcare Regulation, O.C. 879-2021 (G.O. II). Ministère de la Famille, Mémoire au conseil des ministres : Projet de règlement modifiant le Règlement sur les services de garde éducatifs à l’enfance, tabled on September 20, 2023; Ministère de la Famille, Portrait de la main-d’œuvre du réseau des services de garde éducatifs à l’enfance, 2022–2023, October 2023.

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January 31, 2024

An employer’s criminal negligence upheld on appeal

On August 11, 2023, the Court of Appeal of Quebec handed down a decision in CFG Construction inc. c. R.,1 dismissing the appeal of the guilty verdict against an employer, CFG Construction inc. (“CFG”), for criminal negligence having caused the death of one of its employees. This decision serves as a reminder of the potential criminal liability of an employer, depending on its legal form, for the death or bodily injury of its employees in the workplace. More specifically, the case provides unique insight into the sanctioning of an “organization,” a term that includes a body corporate or an association of persons,2 for faults committed by a “senior officer” under the Criminal Code (“Cr.C.”). The facts The decision stems from a fatal accident that occurred on September 11, 2012, on the site of a wind farm in Saint-Ferréol-les-Neiges, involving a heavy container truck owned by CFG. The truck flipped over on a downhill curve, killing the driver, a CFG employee with 25 years of experience as a truck driver. At the trial, emphasis was placed on the maintenance of the truck and its braking system. The case A number of decisions were rendered in this case. Regarding criminal liability, the Court of Québec handed down two judgments, one finding CFG guilty and the other establishing the sentence. On February 14, 2019, CFG was found guilty of criminal negligence causing the death of the aforementioned truck driver. Essentially, the Court found that CFG’s failure to perform maintenance on the truck, which it had a legal obligation to do, constituted a [translation] “marked and significant departure from the conduct expected of a reasonable person, given the nature and circumstances of the activity in question”.3 For instance, the truck involved in the accident had 14 major pre-existing defects, all of which related to its braking system.4 The Court was decisive in establishing CFG’s liability through its foreman-mechanic, whom it considered to be a “senior officer” within the meaning of the Cr.C., and whose faults could be ascribed to CFG in this case,5 as explained below. On December 3, 2019, CFG was fined $300,000, plus a victim surcharge of 15% of the fine, and placed on a three-year probation with many conditions. This decision brings to light the factors to consider in sentencing an organization, as well as the only penalty that may be imposed, namely a fine of any amount in the case of a criminal act.6 Among these factors, the court must consider “any advantage realized by the organization as a result of the offence”.7 In this regard, failure to incur the necessary expenses to perform maintenance on a vehicle driven by an employee may be construed as an “advantage” for the employer-owner and is considered an aggravating factor in sentencing.8 Case law on this subject is “tenuous”, but fines ranging from $100,000 to $750,000 have been given in various situations.9 The notion of “senior officer” set out in the Criminal Code In its decision, the Court of Appeal provides the historical context that led to the inclusion of a legal mechanism in the Cr.C. governing the liability of organizations for death and bodily injury in the workplace. In 2003, Parliament passed Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations) further to the 1992 tragedy at the Westray mine in Nova Scotia, where 26 miners were killed after methane detectors were disconnected with mine supervisors’ knowledge.10 Among the key amendments central to the CFG case, sections 217.1 and 22.1 of the Cr.C. provide not only for the legal obligation of any person who directs or has the authority to direct how another person does work or performs a task to take reasonable steps to prevent bodily harm to that person, but also for the possibility of holding an organization “liable” for an offence of negligence by reason of the actions of certain persons working for it, either a “representative” or a “senior officer,” as these terms are defined in section 2 of the Cr.C. The CFG case as a whole is an example of how the aforementioned legal mechanism applies where an employee considered to be a “senior officer” departs from the reasonable standard of care expected in the circumstances. As mentioned above, CFG was found guilty because of the important role that the head mechanic played, in that he had the authority to carry out the maintenance required on vehicles, including on the defective truck.11 As a result, CFG was legally obliged to ensure that the mechanic had the skills to do the work and provide him with the necessary instructions and equipment, as well as an adequate work environment.12 In short, it is important to remember that: The term “senior officer” refers to “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer”.13 This definition [translation] “does not only include senior executives and a company’s board of directors”.14 Ultimately, an employee will be considered as a “senior officer” according to the functions s/he performs and the responsibilities s/he assumes in a given organization.15 Finally, the Court of Appeal points out that failure to fulfill the legal obligation set out in section 217.1 of the Cr.C. does not, in and of itself, constitute an offence.16 In the circumstances of this case, failure to comply with the aforementioned section along with the provisions on criminal negligence causing death provide the basis for CFG’s guilt, which constitutes the defining characteristic of this “positive” obligation in criminal law. In this regard, section 22.1 of the Cr.C. serves as the basis for CFG’s liability insofar as the organization was a “party to the offence” given the role that its mechanic played in the matter. Conclusion The CFG case shows how criminal negligence in the workplace is condemned outside of the penal provisions applicable under Quebec’s labour laws. Incidentally, the notion of “senior officer” within the meaning of these laws should not be confused with that codified in the Cr.C. While the former is limited in scope, the term “senior officer” in the Cr.C. is defined more broadly to include, in addition to directors and senior executives, other persons who play a significant role in leading or managing a given area of activity within an organization. Note that in this case, CFG’s guilt could have resulted from the conduct of more than one representative or senior officer.17 It is also important to remember that the extent to which proceedings in such matters involve natural persons rather than organizations, or extend to every person who may be held liable, is a matter of prosecutorial discretion. 2023 QCCA 1032. “organization,” section 2 of the Cr.C. Supra note 1 at para. 10 (as the Court of Appeal pointed out, the analytical framework for determining criminal negligence was updated further to the decision of the Supreme Court of Canada in R. v. Javanmardi, 2019 SCC 54). R. c. CFG Construction inc., 2019 QCCQ 1244, para. 141. Ibid, paras. 255 and 285. R. c. CFG Construction inc., 2019 QCCQ 7449, paras. 84 and 149. Section 718.21a) of the Cr.C. Supra note 6, para. 91. Ibid, paras. 163 to 167. Supra note 1, paras. 60 and 62. Supra note 4, para. 35. Ibid, para. 381. “senior officer”, section 2 of the Cr.C. Supra note 4, para. 256. Ibid. Supra, note 1, para. 73. Ibid, para. 72; see also supra note 6, para. 14.

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January 17, 2024

A possible workaround to the long processing times at the Bureau d’évaluation médicale

In recent years, the job market has changed considerably, especially further to the pandemic and the impacts it has had. Employers and employees in Quebec faced unprecedented situations, and these appear to have led to a significant increase in claims for recognition of psychological occupational injuries, such as adjustment disorders and depression.1 Consequences of long processing times at the Bureau d’évaluation médicale The increase in psychological injury cases is not without consequences for employers, and it is now common for the evaluation procedure at the Bureau d’évaluation médicale (BEM) to take several years. The considerable amount of time it takes to obtain an opinion from a member of the BEM has a major impact on the management of such occupational injury cases. For example, many healthcare professionals (i.e., attending physicians) categorically refuse to confirm an injury when an employee is waiting for a expert medical opinion from the BEM, which can delay the resolution of a case for several years. Without a BEM opinion on the medical issue in dispute, it is impossible for employers to schedule hearings or even attempt settlement discussions. Furthermore, in some cases, processing times can even lead to the deterioration of the employee’s health. Without an opinion from the BEM, it can be difficult for the employer in question to reintegrate the employee without a specific diagnosis or functional limitations having been established. This also makes it difficult for the employer to put proper measures in place to safely reintegrate the employee in the workplace. Like many other Quebec organizations, the BEM is currently lacking personnel, especially psychiatric experts.2 This specific problem causes many issues for Quebec employers in their management of occupational injury cases, and also generates enormous costs. However, another option to speed up the process is now available. The Paccar Canada (Usine de Ste-Thérèse) case Just recently, the occupational health and safety division of the Administrative Labour Tribunal (ALT) rendered a very interesting decision that provides Quebec employers with a way to obtain a medical expert opinion more quickly as part of a BEM procedure. In this case,3 a worker was injured when she fell in the parking lot of the plant where she works. The CNESST accepted her claim for an occupational injury having caused a contusion to her elbow and wrist, a cervical sprain and a mild concussion. A few months later, the worker’s attending physician diagnosed her with major depression, which the CNESST subsequently recognized as being linked to the initial event. The employer challenged this decision. However, a hearing date cannot be set as long as the procedure is still under way at the BEM, in particular as concerns the diagnosis to be used to rule on whether the psychological injury is admissible. After receiving a medical certificate from the worker’s attending physician confirming the major depression diagnosis, the employer mandated a psychiatrist to assess her. The psychiatrist’s medical opinion differed from that of the attending physician, in particular where the diagnosis was involved. In May 2021, the employer asked the CNESST to request an opinion from the BEM. In June 2021, the CNESST applied the BEM to obtain the opinion of a member, more specifically the opinion of a psychiatrist. A month later, having still not received a notice to report from a member of the BEM, the employer asked the CNESST to designate a health professional so that they could render a medical opinion that would be binding on the parties, asking the CNESST to apply paragraph 3 of section 224.1 of the Act respecting industrial accidents and occupational diseases (AIAOD), which states the following: 224.1. Where a member of the Bureau d’évaluation médicale gives an opinion pursuant to section 221 within the time prescribed in section 222, the Commission is bound by that opinion and shall render a decision accordingly. Where the member of the Bureau d’évaluation médicale fails to give his opinion within the time prescribed in section 222, the Commission is bound by the report obtained from the health professional it designated, where that is the case. If the Commission has not obtained such a report, it may request, from the health professional it designates, a report on the matter mentioned in any of subparagraphs 1 to 5 of the first paragraph of section 212 which is the subject of the contestation; in that case, the Commission is bound by the opinion of the member of the Bureau d’évaluation médicale or the report of the health professional it has designated, whichever it receives first, and shall render a decision accordingly. The Commission shall file in the worker’s record any opinion or report it receives even though it is not bound thereby. Section 222 of the AIAOD stipulates that the member of the BEM must render their opinion within 30 days of the date on which the record was transmitted to them and send it without delay to the Minister, with copies to the CNESST and to the parties. We understand from section 224.1 of the AIAOD that the CNESST is bound by the medical opinion of the designated health professional and must render a decision accordingly, which may then be contested by the employer or worker, as the case may be. This would ultimately allow the parties to be heard by the ALT, which would then render a decision on the merits. In the Paccar case, the CNESST denied the employer’s request for an administrative review of the CNESST’s refusal to refer the case to a health professional, in spite of paragraph 3 of section 224.1 of the AIAOD. This refusal was the crux of the dispute. Thus, the ALT had to determine whether the CNESST should have granted the employer’s request. The ALT did indeed determine that the CNESST should have done so, given the BEM’s inability to appoint a psychiatrist within a reasonable time. The decision The CNESST argued that paragraph 3 of section 224.1 3 of the AIAOD provides discretionary power, as the section indicates that the CNESST may request a report from health professional it designates. In the CNESST’s opinion, the word “may” gives it discretionary power, and it is thus not obliged to designate a health professional in all cases. The ALT explained that considering the objectives of the AIAOD, the BEM procedure must be carried out swiftly and efficiently. Thus, if the BEM is unable to appoint a psychiatrist from among its members within a reasonable amount of time, the objectives of the AIAOD cannot not be achieved, and the result of it becoming impossible to complete the BEM procedure would be entirely inconsistent. Clearly, this was not the government’s intention. In this context, it would be difficult for the CNESST to justify not using its power to designate a health professional, because if it did not do so, the case would no longer move forward, and this would not be good for any of the parties involved, including the CNESST. The ALT concluded that in accordance with section 9 of the Act to establish the Administrative Labour Tribunal,4 it had the power to enforce paragraph 3 of section 224.1 of the AIAOD.In the Paccar decision, the CNESST had undertaken during the hearing to designate a health professional within a short time should the ALT so rule, who would proceed to assess the worker and render a decision accordingly. Practical information to make the process easier At this stage, it is very difficult to predict how the CNESST will apply section 224.1 of theAIAOD in the future. However, we have every reason to believe that many employers will unfortunately find themselves in the same situation as the employer in the Paccar case, if they aren’t already, especially where psychological injuries are involved. It is reasonable to assume that the CNESST will not apply paragraph 3 of section 224.1 of the AIAOD as long as an employer does not formally request that it do so. In the future, we recommend that you closely follow the progress of your BEM request with the CNESST: Once 30 days have passed since you made your request, we recommend that you contact the CNESST agent assigned to your case to find out how far they have gotten in processing your request. If your request has not yet been submitted to the BEM, we recommend that you send a letter to the CNESST in which you request that it apply paragraph 3 of section 224.1 of the AIAOD, and more specifically that it designate a health professional. Remember to ask the CNESST to render a formal decision on your request so that you can apply for its review if it is not in your favour. If you are facing this type of situation, we invite you to consult our team of employment law professionals, who can help you manage your case. For example, in 2021, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) reported a 9% increase in recognized stress-related injuries (1,679 cases in 2021). See portrait-violence-stress-harcelement-2018-2021.pdf (gouv.qc.ca, in French only). AI_M20222152_stat-diverses-bem_MTESS.pdf (quebec.ca, in French only). The BEM has compiled organizational statistics for the period from 2017 to 2022. In particular, the BEM has reported a decrease in the number of opinions it issues, down from 11,045 in 2017–2018 to 9,651 in 2021–2022. The BEM also recorded a considerable increase in the average time taken to process a case (from 69.7 days in 2017–2018 to 138.7 days in 2021–2022). Paccar Canada (Usine de Ste-Thérèse), 2023 QCTAT 3989. T-15.1.

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