Canadian HR Reporter - Sample Issue

CANADIAN HR REPORTER APRIL 2018 EMPLOYMENT LAW 5 IN CORPORATE LEADERSHIP DIVERSITY & INCLUSION 2 nd Annual D&I Strategies to Impact Beyond the Boundaries of Business June 12–13, 2018 | Ted Rogers School of Management | Toronto 5 PANELS 2 DAYS 1 ROOM 25+ SPEAKERS SAVE 10% Mention registration code D10-431-431FX03 Download the full program at CanadianInstitute.com/Diversity/ In Collaboration With: Presented by: Media Partner: Accommodation versus compensation Quebec worker argues human right to accommodation not superseded by workers' comp A Quebec worker who was injured at work has won his appeal arguing that his human right to accommodation of his disabil- ity was not superseded by the province's workplace injury compensation scheme. Alain Caron was a special educa- tor at Centre Miriam, a centre for people with intellectual disabili- ties in Mont-Royal. On Oct. 20, 2004, Caron hit his left elbow on a door frame while working at Centre Miriam. He developed lateral epicondylitis, or tennis elbow, as a result. Due to his limitations from the injury, Centre Miriam tem- porarily assigned him to be the team leader of the night shift. He handled paperwork and provided training and support to night shift employees involved in the transfer of patients. In 2007, Centre Miriam's role in transferring patients was complet- ed and Caron's responsibilities on the night shift ended. However, his elbow injury prevented him from returning to his pre-injury position of special educator. e centre de- termined it no longer had suitable employment for Caron. Quebec's workers' compensa- tion body at the time, the Com- mission de la santé et de la secu- rité du travail (CSST), told Caron that since there was no suitable employment for him at Centre Miriam, it would look for reha- bilitation and retraining options. But Caron felt Centre Miriam should do more to accommodate him and protect his right from discrimination under the Quebec Charter of Rights and Freedoms. He argued that the centre could accommodate him with suitable employment in his pre-injury po- sition as an educator, with certain modifications, or the team leader position he held temporarily. e CSST determined the duty to accommodate under the Que- bec charter didn't apply to the province's Act respecting indus- trial accidents and occupational diseases — the authority for the province's workplace injury com- pensation scheme. After an appeal, the Commis- sion des lésions professionnelles (CLP) agreed in 2012, ruling the statutory benefits from Quebec's workers' compensation scheme met the employer's duty to accommodate. Once an employee received compensation benefits or was ac- cepted for retraining, there was no further need to accommodate, said the tribunal in dismissing the ap- peal and ruling that Caron's right to return to work had expired. Caron took his case to the Que- bec Superior Court in 2014, which disagreed with the earlier find- ings. e court found the employ- er's duty to accommodate under the provincial charter should be factored into the question of suit- able employment with the original employer, and it ordered Caron's case be reconsidered. e Quebec Court of Appeal agreed and dismissed the CSST's appeal a year later, determining that the Quebec workplace injury compensation legislation should be considered in accordance with Caron's human rights under the charter — including the duty to accommodate. e case made its way to the Supreme Court of Canada, where the country's top court noted that Quebec's workers' compensation system conferred any matters under the scheme exclusively to the CSST, and workers who were injured at work could not launch a civil liability action related to the workplace injury against their employer. is meant "there is no other recourse for an injured worker, and no other forum in which to vindicate his or her rights," said the Supreme Court. e court also noted that Que- bec's injured worker legislation was intended to prevent the un- fair treatment of workers based on disabilities resulting from work- place injuries. e act specifically states "no employer may dismiss, suspend or transfer a worker or practise discrimination or take reprisals against him, or impose any other sanction upon him, because he has suffered from an employment injury or exercised his rights un- der this act." 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. is duty is not unlimited but rather is limited by the point of undue hardship. e 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 accommodate, injured worker legislation shouldn't de- prive someone 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 leg- islation allows workers to return to their pre-injury employment within a specified time if they're able to recover sufficiently. If their right to return to work expires af- ter the specified time, they have access to job-search, retraining, or other assistance from the CSST, as well as temporary income re- placement benefits. e Supreme Court found that the legislation allowed for three different possibilities for injured workers — reinstatement, equiva- lent work or suitable employment — all which ensure "that an em- ployee who is able to work can do so," which is also consistent with the duty to accommodate. e Supreme Court also found that the CSST's services provid- ing assistance for injured workers getting back into a state of Jeffrey Smith Legal View DUTY > pg. 17

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