Upcoming: A New Framework for the Grievance Arbitration Process in Quebec

May 7, 2025

On April 24, 2025, Labour Minister Jean Boulet tabled Bill 101, An Act to improve certain labour laws, in the National Assembly of Québec. This new omnibus bill proposes some 20 measures to amend legislative provisions, including those regarding the grievance arbitration process set out in the Labour Code.

The proposed measures that concern grievance arbitration include the following:

Establishment of a maximum time limit of six months to appoint an arbitrator and of one year to hold a first hearing:
- An arbitrator will have to be appointed within six months of the grievance being filed. If this does not occur, the party that filed the grievance will have to ask the Minister to appoint one within 10 days after the time limit has elapsed, failing which the party will be deemed to have withdrawn its grievance. However, it will be possible for the party to apply to the Administrative Labour Tribunal to have the time limit extended by 10 days if it can show that it was impossible to act.
- The first day of a grievance hearing must take place no later than one year after the grievance is filed. It will be possible to extend this time limit once only and for a specific number of days if the parties so request and the arbitrator agrees.
- Grievances filed before these new provisions come into force will not be subject to the new process. The provisions would also not apply to the public and parapublic sectors.
Requirement that parties consider mediation before resorting to arbitration and introduction of measures specific to the process.
Mandatory disclosure of evidence between the parties within the time limits set at the pre-hearing conference, or, failing that, at least 30 days before the hearing. Two exceptions are provided for: when an urgent situation arises or unless otherwise decided to ensure the proper administration of justice. Proof that a copy of the evidence was provided will have to be sent to the arbitrator.
Requirement for the arbitrator to hold a pre-hearing conference when one of the parties requests one.

These are just a few of the changes proposed by Bill 101, which also includes several other measures, such as:

Measures aimed at maintaining the employment relationship for an employee who is absent because of a public health rule, or because of a disaster, as defined in the Act respecting civil protection to promote disaster resilience (chapter S-2.4).
Heftier fines for criminal offences under the Act respecting labour standards and the Labour Code.
A requirement for associations to present their audited financial statements at annual general meetings and to make them available to members on request.
Measures concerning the health and safety of workers as well as the occupational health and safety compensation system.

Bill 101 must go through a number of stages, including special consultations and public hearings, before its provisions come into force. More articles to come on this subject!

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Written by

Zeïneb Mellouli
Partner, Lawyer
Anne-Sophie Paradis
Lawyer

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April 4, 2025

Airudi: Rapid, people-centric growth powered by AI

Growth is nothing new at Airudi. This rising AI star has consistently doubled or even tripled its sales every year since its launch in 2019. “We’re HR specialists. Growth is in our DNA,” says Amanda Arciero, Co-founder and VP Operations at Airudi. Airudi’s algorithm automates HR decision-making processes, helping companies make strategic decisions faster. Its AI-powered solution is designed by and for people and is rapidly gaining in popularity. “It’s like a virtual HR manager,” says Pape Wade, CEO and Co-founder of Airudi. Pape was once HR director of a large company with 3,000 employees, and Amanda was his senior advisor when they made the same observation: “HR was essentially a support function. Most professionals were consumed by repetitive tasks and time-consuming processes,” says Amanda. “Plus, we were seeing tons of data accumulate in filing cabinets and spreadsheets that we weren’t using at all.” Amanda and Pape decide to leave their respective jobs to pursue an ambitious goal: to use the data accumulated by HR departments to automate administrative workflows and put people back at the heart of organizations. Thus Airudi was born. The two entrepreneurs landed their first major contract worth $3 million in 2020. Year after year, they continued to gain new customers in Canada, Europe and, more recently, Africa. Their growth has been organic but skyrocketing. In five years, Airudi has become a leader in the AI community and the HR sector. Thanks to strategic partnerships, over 5,000 companies worldwide now use their products. From left to right: Amanda Arciero and Pape Wade. Airudi’s added value With some 50 employees in Quebec, Ontario and Senegal, Airudi currently offers three AI-powered solutions: workforce prediction and allocation, occupational health and safety, and enhanced recruitment. “Our goal is to reach around $100 million in profit by 2028,” says Amanda. The company’s name, Airudi, is pronounced like the word érudit (“erudite” in French). It’s a nod to Airudi’s multi-disciplinary team of artificial intelligence, data science, human resources and business intelligence experts. The secret to their success? According to the two entrepreneurs, it’s a combination of several factors. 1. Putting people first First of all, Airudi’s algorithm addresses a major concern for the HR sector. We’re using digital intelligence to make HR teams more efficient and productive, allowing them to focus on what matters: creating human connections. Amanda Arciero, Co-founder and VP Operations, Airudi Amanda gives the example of the recruitment platform, which helps customers recruit better, faster and on a larger scale by automatically matching profiles to vacant positions and ensuring fast and efficient follow-up and interview scheduling. “By reducing the time spent on recruitment, our customers can spend more time building relationships with candidates and successfully onboarding them into the company,” says Amanda. Two other strengths of the Airudi solution: quality and granularity. “The CFO of a company with 3,000 employees is not at all the same thing as the CFO of a company with 30 employees. Our algorithm captures this kind of nuance.” 80%: Reduction in recruitment time when using Airudi’s enhanced recruitment solution. A people-centric approach guides the company’s own business strategy, not just its product development. The first team that Airudi hired—even before building a technology team and thinking about fundraising—was an advisory board made up of experienced businesspeople including Robert Dutton, ex-CEO of Rona, Frantz Saintellemy, President and CEO of LeddarTech, and Julie Plouffe, Partner, SVP Finance and Chief Accounting Officer at Sagard. “We learned together and built Airudi together,” says Pape. “Our advisory board continues to give us invaluable insight.” Next, the two entrepreneurs established strategic partnerships with researchers working in Quebec’s top AI network. With highly skilled employees ranging from masters-holders to post-docs, Airudi has developed an SaaS (Software as a Service) business model that guarantees financial stability through recurring revenues. 2. Building strategic partnerships Strategic partnerships were also important to the company’s growth. “We operate mainly through redistribution partnerships or marketing agreements,” says Amanda. “We talk more about partners than customers at Airudi.” One of Airudi’s most promising partnerships is with the Maritime Employers Association (MEA), the organization that manages the workforce at the Port of Montreal. Since ship arrivals and departures don’t follow a regular daily schedule, the MEA had to ask terminal operators to determine their labour requirements for the next day. Port employees’ schedules were generated daily at 6 p.m. Taking into account port traffic, weather conditions, and the quantity and type of cargo, Airudi developed an algorithm that optimizes workforce allocation while respecting collective agreements, the availability of port workers and the skills required. “Our solution accurately predicts ship arrival times up to 21 days in advance, ensuring smooth operations in the port and reducing workforce allocation errors from 30% to 15%, generating significant savings in labour costs,” says Amanda. The partnership with the Port of Montreal has opened doors in Europe. The Quebec-based company subsequently developed a strategic partnership with SOGET, a French company specializing in streamlining logistics flows, covering 40 logistics sites in 8 countries. More recently, Airudi has adapted its predictive solution to provide Urgences-santé with a similar paramedical staff planning tool. 3. You’re never too small to go international International expansion is another successful strategy that has put wind in the company’s sails. “Innovation is experienced differently in North America, Europe and Africa,” says Pape. “We’re an innovative company. It’s important to have these different perspectives.” Many companies say to themselves: We’re going to make our name on the Quebec market, then go international. I think this is a mistake. We had five employees and were already developing the international market.” Pape Wade, CEO and Co-founder of Airudi Airudi has already had customers in Europe for two years and has just opened offices in Pape’s native Senegal. The growth and innovation potential of the African market is still underestimated. “Our Cameroonian-born scientific director, Foutse Khomh, ranks as the world’s fourth most prolific researcher in terms of publications in AI, and he ranks first in Canada. There’s a lot of talent and growth potential on the African continent,” says Amanda. Currently, 80% of Airudi’s sales are generated in Canada, 12% in Europe and 8% in Africa. As it expands its international footprint, the SME remains firmly rooted in the Quebec technology community. “When it comes to innovation, we’re very strong in Quebec, with access to the best talent and researchers,” says Pape, who also sits on the board of Mila – Quebec AI Institut. Growth, but not at any price AI is a powerful tool, but one that raises a number of ethical issues. “We’re making the same mistake we made with the environment. If we don’t put the responsible side of AI first, we’ll soon hit a wall.” Pape Wade, CEO and Co-founder, Airudi Each year, Pape and Amanda participate in a strategic planning exercise to ensure that Airudi’s business objectives and technological advancement are aligned with its values. Are we creating a positive impact for the benefit of society, employees and customers? Do we create people-centric products? Are we making good use of technology? “We put a lot of thought into all our decisions. If there’s growth potential, but it’s not aligned with our values, we won’t consider it.” Amanda Arciero, Co-founder and VP Operations, Airudi Pape likes to use the analogy of agriculture when talking about Airudi’s growth strategy: “Seeds are carefully sown and tended until they flower successfully. You have to be patient.” For example, the strategic partnership with SOGET came about after a year and a half of work and meetings. “A partnership that opens the door to 40 ports around the world certainly takes time,” says Pape. Conclusion Putting people back at the centre of organizations. Customers who become partners. Learning from other perspectives and approaches. Growth, but not at any price. In five years, Pape and Amanda have built a winning strategy. Today, Airudi is a solid company rooted in sustainable values. What’s next? According to Amanda, the more we look to the future, the more technology will be part of our lives. It’s essential to shore up companies against current challenges, including labour shortages, the arrival of new generations on the job market and inflation. Airudi is currently looking for ways to further democratize access to its solutions, so that all organizations can benefit from them—while still centring people, being responsible, and creating value for companies and workers. “Our philosophy is not to make money. Our philosophy is to create innovative, caring, people-centred technology that creates a positive impact. Usually, when you focus on good business, success and growth naturally follow,” says Amanda.

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April 23, 2025

Election day is soon: What obligations do employers have regarding the federal election?

On April 28, 2025, Canadian voters will go to the polls for the federal election. Now is a good time to go over what obligations employers have under the Canada Elections Act1 (the “Act”) and what penalties apply should employers breach their obligations. Summary Employers are required to give employees who are eligible to vote three consecutive hours on election day to do so, without loss of pay. If an employee were to find themselves unable to exercise their right because of their schedule, the employer must change that employee’s schedule. However, under their management rights, employers are entitled to determine the period during which employees will be given time off to go vote. Management rights must be exercised reasonably and in accordance with applicable provisions of collective agreements, if any. In Quebec, polling stations will be open from 9:30 a.m. to 9:30 p.m. In addition, employers can in no case force employees to exercise their right to vote in advance. Employers contravening the Act could be fined up to $2,000, but note that certain offences may result in significantly higher penalties. The Act stipulates in particular that no employer may “by intimidation, undue influence or by any other means, interfere with the granting to an elector in their employ of the three consecutive hours for voting.”2 In such cases, offenders may face fines of up to $50,000 or imprisonment for five years. The same applies to an employer who, by intimidation or duress, would attempt to compel or compel a person “to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election.3 As such, prudent employers should avoid making comments or behaving in a way that could be interpreted by employees as an attempt to influence their vote. Conclusion Election day is fast approaching. Don’t hesitate to contact a member of our Labour and Employment Law team if you have any questions about the application of the Canada Elections Act. [1] S.C. 2000, c. 9. [2] Id., s. 134. [3] Id., s. 282.8.

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April 2, 2025

Application for an interim injunction: Manufactured urgency is not a 9-1-1 emergency

On March 3, 2025, Superior Court Justice Nancy Bonsaint dismissed an application for an interim interlocutory injunction that would allow Les Entreprises de la Batterie inc. to use a property it did not own for major construction work on its building. The judgment serves as a reminder that a party cannot manufacture a sense of urgency and then use that to support its application for an interim injunction. Summary of facts The Plaintiff, Les Entreprises de la Batterie inc., owns a building that has been under construction since March 2021, in order to convert it into a hotel that will serve as an extension to the hotel the Plaintiff currently operates.1 The Defendant owns a hotel and a piece of property adjacent to the building under construction. The property is used as a parking lot for his hotel guests.2 Construction work on the Plaintiff’s building was initially carried out in two separate phases, from March to November 20213 and from August 23, 2022, to July 2024.4 During those phases, the Parties reached various agreements whereby the Plaintiff could use one (1) of the Defendant’s parking spaces, in exchange for compensation.5 On February 14, 2025, the Plaintiff informed the Defendant that it planned to begin a new phase of construction (Phase 3) on February 28, 2025.6 The Plaintiff also informed the Defendant that, as part of the new phase of construction, the Plaintiff would need to use half of the Defendant’s parking lot, that is, six (6) parking spaces, and that the entrance to the parking lot would have to be relocated for more than two (2) years.7 Additionally, the Plaintiff pointed out that it would need access to the Defendant’s entire parking lot for a few days in the spring of 2025.8 The Plaintiff alleged that construction work on its building had to begin urgently on February 28, 2025.9 The Defendant objected to having to tolerate such a major disruption for an additional two (2) years, given that he had endured the inconveniences caused by the Plaintiff’s construction work for over four (4) years now, without being offered any form of compensation that would be considered fair or reasonable in the circumstances. On February 27, 2025, the Plaintiff brought anoriginating application before Justice Bonsaint, seeking orders for an interim interlocutory injunction, an interlocutory injunction and a permanent injunction, as well as for a declaration of abuse of process and damages, which was amended on February 28, 2025.10 At the interim interlocutory injunction stage, the Plaintiff asked the Court to issue a temporary order granting the Plaintiff access to the Defendant’s six (6) parking spaces so it could continue setting up its construction site.11 The Plaintiff also sought reimbursement of the professional fees incurred in applying for the injunction. The Plaintiff alleged that the hotel expansion was [TRANSLATION] “a large-scale project with costs in the tens of millions of dollars”.12 The Plaintiff further alleged that [TRANSLATION] “there is an urgent need for the construction work required to repurpose the building and turn it into a hotel to continue, without being interrupted by the Defendant’s actions”.13 The Plaintiff argued that halting construction work on its building would result in delays, significantly disrupting the timeline of the project, which was planned over the next two (2) years. Furthermore, it would lead to substantial additional costs associated with the various extras charged by the contractors it had hired to carry out the conversion and construction work.14 Needless to say, the Defendant opposed the application for an interim interlocutory injunction, arguing in particularthat the facts alleged by the Plaintiff failed to meet the urgency test.15 Those are the facts that Justice Bonsaint took into account when rendering her decision. The criteria for granting interim interlocutory injunctions In her judgment, Justice Bonsaint reviewed the legal principles governing interim interlocutory injunction applications. We will do the same below. The criteria for granting an interim interlocutory injunction are as follows: Urgency Serious issue to be tried or strong prima facie case Serious or irreparable harm Balance of convenience16 It is a discretionary and exceptional remedy that should only be granted sparingly and under strict conditions.17 The urgency criterion Urgency is [TRANSLATION] “of paramount importance”18 in determining whether an interim interlocutory injunction should be granted. If the urgency test is not met, the application simply cannot be allowed.19 Courts often describe the level of urgency required as being akin to [TRANSLATION] “a 9-1-1 emergency”.20 Interim interlocutory injunctions should only be granted in cases of [TRANSLATION] “extreme urgency”.21 For a court to find that the urgency test is met, the urgency must not result from a delay in bringing legal action. It must be [TRANSLATION] “immediate and apparent”—not the product of the plaintiff’s own lack of diligence.22 In other words, [TRANSLATION] “the alleged urgency must be real—not manufactured by the person asserting it”.23 Upon reviewing the case, Justice Bonsaint noted that the Defendant had been made aware only on January 31, 2025, that the Plaintiff would need access to his property for construction work.24 Prior to January 2025, the Plaintiff had not informed the Defendant of its true intentions regarding the work.25 It was not until February 14, 2025, that the Plaintiff officially informed the Defendant of the nature of the access required for the third phase of the project, namely, the use of at least half of the Defendant’s property from February 28, 2025, to March 31, 2027.26 Further to the Defendant’s contestation, Justice Bonsaint noted that the Plaintiff had known for several months that the third phase of the work would begin in early 2025.27 She found that the Plaintiff [TRANSLATION] “had not treated the issue of accessing the parking lot as one requiring urgent resolution”.28 The Plaintiff tried to justify its failure to be proactive, arguing that it had been unable to inform the Defendant of its space requirements before 2025 because the project timeline was still unknown at the time.29 However, Justice Bonsaint found that such explanations simply did not excuse the Plaintiff’s delay in filing its application for an interim interlocutory injunction against the Defendant.30 On the contrary, the supporting documents that the Plaintiff had submitted with its letter dated February 14, 2025, such as a plan of the Defendant’s parking lot and the preliminary project timeline, included references to “2024”.31 Given the above, Justice Bonsaint could only conclude that the Plaintiff had known for several months that construction work on its building was scheduled to begin in 2025.32 On that point, Justice Bonsaint was clear: [TRANSLATION] “The Court understands that preliminary construction timelines may be subject to change, but there is nothing to suggest that construction needed to begin ‘urgently’ on February 28, 2025. . . . the Plaintiff should have taken action as early as January 2025”.33 The Plaintiff had been aware of the access issues involving the Defendant’s property since the fall of 2024—and certainly since January 2025.34 Those issues should have prompted discussions between the Parties’ lawyers well before February 2025, and no later than January 2025.35 Discussions or attempts to settle the matter The Plaintiff also argued that, at the interim interlocutory injunction stage, discussions or attempts to settle the matter could have a bearing in determining whether the urgency requirement was met.36 Justice Bonsaint rejected that argument, given that no real negotiations had taken place, other than failed calls in November and December 2024, and again in January 2025, and that the Plaintiff had been aware of the access issues involving the Defendant’s property since the fall of 2024—and certainly since January 2025. Consequently, Justice Bonsaint dismissed the application for an interim interlocutory injunction, seeing as the Plaintiff had asked the Court to find that such an order, which would grant the Plaintiff access to half of the Defendant’s parking lot for two (2) years, needed to be issued urgently, even though the Plaintiff itself had not considered the need to access the parking lot as being an urgent matter to be resolved before the third phase of construction began.37 Key takeaways The urgency criterion is of paramount importance in determining whether an interim interlocutory injunction should be granted. That requirement must be met for the Court to allow such an application. In assessing the facts and allegations related to an application for an interim interlocutory injunction, the Court must ensure that the urgency is real—akin to a 9-1-1 situation—and not manufactured by the party seeking the relief. A delay attributable to the plaintiff cannot serve as a basis for granting an interim interlocutory injunction against the defendant. Half-hearted attempts at settlement discussions or negotiations do not excuse the delay between a party becoming aware of the facts warranting an interim interlocutory injunction and the filing of the application. Diligence is therefore essential in managing and mounting such cases, making it more likely that an interim interlocutory injunction will be granted. Entreprises de la Batterie inc. c. Biron, 2025 QCCS 608, paras. 1 and 10 (hereinafter the “Judgment”). Judgment, para. 4. Judgment, para. 10. Judgment, paras. 16 to 19. Judgment, paras. 10 to 18. Judgment, para. 27. Judgment, paras. 3 and 27. Judgment, para. 3. Judgment, para. 2. Judgment, para. 6. Judgment, para. 7. Judgment, para. 46. Judgment, para. 47. Judgment, para. 48. Judgment, para. 8. Judgment, paras. 35 and 37 to 39. Judgment, para. 36. Judgment, para. 41. Id. Judgment, paras. 41 and 43. Judgment, para. 42. Judgment, para. 42. Judgment, para. 40. Judgment, paras. 61 and 62. Judgment, para. 62. Judgment, paras. 64 and 65. Judgment, para. 68. Id. Judgment, para. 74. Judgment, para. 75. Judgment, paras. 76 and 77. Judgment, para. 82. Judgment, para. 82. Judgment, para. 84. Judgment, para. 85. Judgment, para. 83. Judgment, para. 90.

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March 10, 2025

Strikes and lockouts: a bill to give greater consideration to the needs of the population

On February 19, 2025, the government introduced Bill 89, a piece of legislation that is essentially designed to regulate strikes and lockouts to limit their impact on the population. The Bill proposes major changes to the QuebecLabour Code,1 including granting special powers to the Minister of Labour to force binding arbitration on the parties in order to break a bargaining deadlock. It also introduces a new category of “services ensuring the well-being of the population,” i.e., services that may be maintained in the event of a labour dispute. Special powers granted to the Minister The Bill would allow the Minister to force the partiesinto binding interest arbitration provided that conciliation or mediation has failed and the Minister considers that the labour dispute is causing or threatens to cause serious or irreparable harm to the population. Such powers would not apply to labour disputes in the public and parapublic sectors.2 The strike or lockout would end at the time indicated in the notice sent to the parties. If the parties cannot agree on the choice of arbitrator, the Minister will appoint an arbitrator ex officio.3 The parties would still have the option to settle the dispute outside of arbitration, and the arbitrator would have no power to amend the resulting settlement agreement.4 Failing agreement, the arbitrator would break the deadlock by ruling on the employees’ working conditions. The new powers are similar to those of the Federal Minister of Labour, who can refer disputes to the Canada Industrial Relations Board under the Canada Labour Code.5 The Board then investigates the matter and decides on the necessary steps to resolve the issue. This mechanism has been used to order employees back to work in major disputes, such as the Canada Post mail strike in December 2024.Services to be maintained to ensure the well-being of the population The Labour Code currently provides that essential services must remain available during labour disputes to safeguard the health and safety of the public.6 However, it does not cover certain cases where a strike could cause major social or economic disruption. From 1982 to 2019, it was solely up to the government, on recommendation of the Minister, to pass orders in council directing the parties to maintain essential services. This gave the executive branch discretionary power to assess whether an anticipated strike posed a significant danger.7 The main goal was to protect the public against social and economic turmoil.8 In 2019, that power was taken away from the government and given to the Administrative Labour Tribunal (“ALT”). The ALT now decides whether certain services must remain available during a strike and, if so, assesses whether the essential service levels are adequate. However, in some cases, the ALT has applied a strict interpretation of the criteria for determining which essential services must be maintained. This is what happened, for example, with public transit in the Capitale-Nationale region, where bus service was not deemed essential during a drivers’ strike.9 Bill 89 parallels that jurisprudential trend by introducing a new category of protected services - those “ensuring the well-being of the population ”. These are defined as the services “minimally required to prevent the population’s social, economic or environmental security from being disproportionately affected, in particular that of persons in vulnerable situations”.10 This provision would apply to all strikes or lockouts, except those occurring in a government department or agency where employees are appointed under the Public Service Act11 or in an institution within the meaning of the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors.12 This notion is similar to the concept of “minimum services” recognized in international labour law, particularly by the International Labour Organization’s Committee on Freedom of Association. The Committee considers that minimum levels may be set for certain services that are not essential “in the strict sense of the term” when a strike has the potential to paralyze a critical sector or trigger a severe national crisis that would jeopardize the well-being of the population, or when such measures are necessary to ensure that the basic needs of the population are met.13 > It is certainly still too early to determine which sectors would fall under the new category in Quebec and be subject to the new interpretation criteria. However, while each case is different, sectors where international law provides for minimum service levels could qualify, as they have a direct impact on daily life. Such services include education during extended strikes, public transit, basic banking, energy infrastructure management, passenger and freight services, and solid waste collection.14 The Bill would allow the government to issue an order in council designating parties for whom the ALT can determine whether services must be maintained in the event of a dispute. It would then be up to the ALT to order the parties to maintain those services, but the parties themselves would first need to attempt negotiations around the services they deem necessary. If no agreement is reached, the ALT will make the final decision. In all cases, an assessment will be conducted to determine whether the level of service is adequate. Moreover, the ALT would be granted various investigative15 and remedial powers16 in the matter. The Bill also introduces various other provisions17 and prohibits changes to the working conditions of employees providing such services, unless the parties have reached an agreement.18 Furthermore, the Bill includes penal provisions and states that employers declaring a lockout in a public service organization are required to inform the other party and the Minister of Labour in writing at least seven clear working days19 in advance. Conclusion Bill 89 is still at the introduction stage, and its approval will depend on the upcoming parliamentary process. The Bill may still be amended before it becomes law. That said, the Bill has sparked strong reactions from trade unions, with some representatives saying they plan to challenge the new measures in court if they are adopted and enforced.20 We will be closely monitoring the Bill’s progress and potential impact on the legal framework governing labour relations in Quebec. CQLR, c. C-27. Bill 89, s. 5 amending the Labour Code by adding section 111.32.2. However, this would not apply to labour relations in the public and parapublic sectors. Bill 89, s. 5 amending the Labour Code by adding s. 111.32.3. Bill 89, s. 5 amending the Labour Code by adding s. 111.32.4. R.S.C. 1985, c. L-2. The existing provisions mainly apply to public services and comparable services, as well as to the public and parapublic sectors. Fernand Morin, Rapports collectifs de travail, 2nd ed., Montréal, Éditions Thémis, 1991, p. 697: [TRANSLATION] “This provision applies only to businesses designated by an order in council and only while collective bargaining is underway (s. 111.0.17 of the Labour Code).According to this section: (i) It is the Minister’s responsibility to assess whether an anticipated work stoppage poses a danger and to take initiative in bringing the matter before the government.” National Assembly of Québec, Commission permanente du Travail, de la Main-d’œuvre et de la Sécurité du revenu (standing committee on labour, workforce and income security), 3rd Session, 32nd Legislature, June 10, 1982, “Étude du projet de loi no 72 - Loi modifiant le Code du travail, le Code de procédure civile et d’autres dispositions législatives” (consideration of Bill 72 – An Act to amend the Labour Code, the Code of Civil Procedure and other legislation), p. B-6440: [TRANSLATION] “For example, I was listening to the MNA for Sainte-Anne—I know other people share those same concerns—who was saying that we should introduce the concept of—this isn’t exactly how he put it, but I was going to say—economic or social turmoil.The idea is embedded in the legal framework governing public health and safety, but falls under the jurisdiction of the executive branch.It’s a key element.” Réseau de transport de la Capitale et Syndicat des employés du transport public du Québec Métropolitain inc., 2023 QCTAT 2525. Bill 89, s. 4 amending the Labour Code by adding s. 111.23.3. CQLR, c. F-3.1.1. CQLR, c. R-8.2. International Labour Office, Freedom of association – Compilation of decisions of the Committee on Freedom of Association, 6th ed., Geneva, 2018, at paras. 830 to 866. The Supreme Court has recognized the relevance of the comparison: Saskatchewan Federation of Labour c. Saskatchewan, [2015] 1 SCR 245, at para. 69. Jean Berner, Les services essentiels au Québec et la Charte canadienne des droits et libertés, Québec, Presse de l’Université Laval, 2018, p. 35. Bill 89, s. 4 amending the Labour Code by adding s. 111.22.13. Bill 89, s. 4 amending the Labour Code by adding s. 111.22.15. The powers in question are those provided for in sections 111.17 to 111.22.1 of the Labour Code. Bill 89, s. 4. Bill 89, s. 4 amending the Labour Code by adding s. 111.22.12. Bill 89, s. 1 amending s. 111.0.23 of the Labour Code. Radio-Canada, Québec solidaire soupçonne la CAQ de vouloir se venger du secteur public, February 19, 2025, https://ici.radio-canada.ca/nouvelle/2142088/greves-limites-projet-loi-quebec, accessed February 21, 2025

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February 11, 2025

New developments in mental health diagnostics: what employers need to know

Employers are regularly faced with complex mental health situations, particularly when their employees are absent due to illness or injury, or when accommodation measures need to be considered. In such cases, they usually request supporting documentation specifying the diagnosis in question. Diagnosing a mental disorder used to be an act reserved exclusively for doctors,1 although the Code of ethics of psychologists does mention “psychological diagnosis.”2 The Act to amend the Professional Code for the modernization of the professional system and to broaden certain professional practices in the field of health and social services,3 also known as Bill 67, which received assent on November 7, recognizes that certain health professionals other than physicians are qualified to make mental health diagnoses. These legislative changes are in keeping with the goal of making professional care and services more accessible to the public, and are in line with the position the Collège des médecins du Québec has taken in recent years.4 The professionals involved and the new authority granted in terms of diagnosis5 Psychologists (including neuropsychologists): Mental disorders Neuropsychological disorders, if a training certificate has been issued to the professional Guidance counsellors: Mental disorders, if a training certificate has been issued to the professional Intellectual disability Speech therapists and audiologists: Language disorders and learning disorders related to language Sexologists: Sexual disorders, if a training certificate has been issued to the professional Nurses: Mental disorders, with the exception of intellectual disability, if the nurse has university training and clinical experience in psychiatric nursing It should be pointed out, however, that this legislative change is not intended to create a new activity reserved for these professionals. Rather, its aim is to recognize that some mental health assessments, and the clinical conclusions arising from them, are really diagnoses.6 Impact on employers When a diagnosis of a mental disorder is made, it is possible that the professional concerned, such as a psychologist or neuropsychologist, might recommend the appropriate treatment, including stopping or returning to work.7 These legislative changes8 could make it more complicated for employers and insurers to refuse to implement this recommendation solely because the healthcare professional is not a physician. We believe it is also possible that these changes will lead to new requests for reasonable accommodation with regard to several increasingly frequent mental issues (e.g. attention deficit disorder with or without hyperactivity, autism spectrum disorder, intellectual giftedness, major depressive disorder, etc.), without a physician necessarily being involved at the diagnosis stage. The expansion of professional practices to promote access to care and services for employees could therefore have the effect of increasing the number of requests submitted to employers in connection with mental disorders. It will be important to monitor how employers and others position themselves and adapt their policies in relation to diagnoses established by the professionals concerned. By way of illustration, it’s possible that some employers may decide to require that an employee with a mental health issue undergo more frequent medical examinations, insofar as circumstances allow. Entry into force The changes introduced by Bill 67 came into force on November 7, 2024.9 Professionals who already met the regulatory requirements on that date are deemed to be qualified to make diagnoses.10 Medical Act, CQLR, c. M-9, s. 31; Professional Code, CQLR, c. C-26, s. 31 to 34; Bernard Cliche, Éric Latulippe, François Bouchard, Paule Veilleux and Isabelle Royer, Le harcèlement et les lésions psychologiques, 2nd ed., Cowansville, Éditions Yvon Blais, 2012, p. 329 and 330: [translation:] “The diagnosis of a mental disorder is reserved exclusively to physicians.” See also the arbitration case law, including Gatineau (Ville de) et Association des pompiers et pompières de Gatineau, 2016 QCTA 236. Code of ethics of psychologists, CQLR, c. C-26, r. 212, s. 38. SQ, 2024, c. 31. Collège des médecins du Québec, Projet de loi no 67 et élargissement des pratiques : notre position (Bill 67 and the expansion of practices: our position), September 18, 2024 [online: Projet de loi no 67 et élargissement des pratiques : notre position | Collège des médecins du Québec]. Bill 67, s. 4 and 45. Remarks by the sponsor of Bill 67, Ms. Sonia Lebel, during the bill’s committee stage, October 10, 2024. In the case of psychologists, for example, section 37(e) of the Professional Code already stipulated that they could “determine, recommend and carry out interventions or treatments with a view to fostering the psychological health and restoring the mental health of a person”. Before Bill 67 came into force, an arbitration award established a link between a professional’s ability to make a diagnosis and their ability to recommend a work stoppage: Aliments Cargill ltée et T.U.A.C., section locale 500, D.T.E. 2010T-817 (Arbitration Tribunal), par. 98 to 103. Bill 67, s. 87. Bill 67, s. 85.

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