Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | April 2018 | News assigned him temporarily to be the team leader of the night shift. He would help with paperwork and provide training and sup- port to night shift employees who were involved in the trans- fer of patients with intellectual or development disabilities from a local hospital to specialized residences and other locations suited to their needs. In 2007, Centre Miriam's role in transferring patients was completed and Caron's respon- sibilities on the night shift end- ed. However, his elbow injury prevented him from returning to his pre-injury position of special educator. Centre Miriam deter- mined it no longer had suitable employment for Caron. Quebec's workers' compen- sation body at the time, the Commission de la santé et de la sécurité du travail (CSST), told Caron that since there was no suitable employment for him at Centre Miriam, it would look for rehabilitation and retrain- ing options. Caron felt it was too early for that and Centre Miriam should do more to accommo- date him and protect his right from discrimination under the Quebec Charter of Rights and Freedoms. He argued that Cen- tre Miriam could accommodate him with suitable employment by employing him in his pre- injury position as an educator with certain modifications, or the team leader position he held during his temporary night shift assignment. The CSST determined the duty to accommodate under the Quebec charter didn't apply to the province's Act Respecting Industrial Accidents and Occu- pational Diseases — the author- ity for the province's workplace injury compensation scheme. After an appeal, the Commis- sion des lesions professionnelles (CLP) agreed in 2012, ruling the statutory benefits from Quebec's workers' compensation scheme met the employer's duty to ac- commodate. Once an employee received compensation benefits or was accepted for retraining, there was no further need to ac- commodate, said the tribunal in dismissing Caron's appeal and also ruling that Caron's right to return to work had expired. Caron took his case to the Quebec Superior Court, which disagreed with the earlier find- ings. The court found the em- ployer's duty to accommodate under the provincial charter should be factored into the ques- tion of suitable employment with the original employer and ordered Caron's case be recon- sidered. The Quebec Court of Appeal agreed and dismissed the CSST's appeal a year later, deter- mining that the Quebec work- place injury compensation leg- islation should be considered in accordance with Caron's human rights under the charter, includ- ing the duty to accommodate. The case made its way to the Supreme Court of Canada, where the top court noted that Quebec's workers' compensa- tion system conferred any mat- ters under the scheme exclu- sively to the CSST and workers who were injured at work could not launch a civil liability ac- tion related to the workplace in- jury against their employer. This meant, said the Supreme Court, that "there is no other recourse for an injured worker, and no other forum in which to vindi- cate his or her rights." The Supreme Court also not- ed that Quebec's injured worker legislation was intended to pre- vent unfair treatment of workers based on disabilities resulting from workplace injuries. The act specifically states that "no employer may dismiss, suspend or transfer a worker or practice discrimination or take reprisals against him, or impose any other sanction upon him because he has suffered from an employ- ment injury or exercised his rights under this act." Fundamental tenet of law On the other hand, the Su- preme Court acknowledged that "the duty to accommodate dis- abled employees is a fundamen- tal tenet of Canadian and, more particularly, Quebec labour law," including the charter. This duty is not unlimited but rather is limited by the point of undue hardship. The court also noted that the charter is treated as "a source of fundamental law" and the prov- ince's courts and other decision makers take the approach that all Quebec law should be inter- preted in conformity with the province's charter. Since the charter includes the duty to ac- commodate, injured worker leg- islation shouldn't deprive some- one who is disabled because of a work injury from the right to be accommodated, much as someone who is disabled from non-work-related reasons, said the top court. Quebec's injured worker legislation allows workers to return to their pre-injury em- ployment within a specified time if they're able to recover sufficiently enough to do the job. If their right to return to work expires after the specified time, they have access to job-search, retraining, or other assistance from the CSST, as well as income replacement benefits for a time. The Supreme Court found that the legislation allowed for three different possibilities for injured workers — reinstate- ment, equivalent work, or suit- able employment — all which ensure "that an employee who is able to work can do so," which is also consistent with the duty to accommodate, said the court. The Supreme Court also found that the CSST's services providing assistance for injured workers getting back into a state of readiness for work — physi- cal, social, and professional re- habilitation plans — are a form of accommodation. As a result, there was common ground be- tween the injury compensation legislation's assertion of the right to suitable employment and the Quebec charter's duty to accom- modate, said the top court. The Supreme Court deter- mined the CLP should have tak- en into account the employer's duty to accommodate under the charter when determining Caron's right to suitable employ- ment. The top court followed suit with the lower courts and set aside the CLP's decision, remit- ting it to the CLP's successor, the administrative labour tribunal, to decide by taking into account the duty to accommodate under the charter. For more information see: • Quebec (Commission des norms, de l'equite, de la sante et de la securite du travail) v. Caron, 2018 CarswellQue 141 (S.C.C.). Suitable < pg. 1 Quebec charter a 'source of fundamental law' Credit: Shutterstock/Art Babych

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