Page 32 - CCCA64_2008

CCCA_V2No4_Col-LabrEmpl-FIN.qxd:CCCA_V1No2_Col-LabrEmpl-V1.qxd 11/24/08 3:30 PM Page 44 Legal Update – Miller Thomson LLP Accommodation revisited Applying the duty to accommodate to occupational accidents in Québec. n 1985,Quebec implemented a significant The CLP maintains that the duty to accom- As a result of such exclusive jurisdiction, Ireform in the area of occupational acci- modate rests with the employer, and that the grievance arbitrators or the commis- dents, replacing the Workers’ Compensation pursuant to the AIAOD,“the rehabilitation sioners of the Labour Relations Board, act- Act, which simply provided compensation process is supported by the CSST in close ing under section 124 of the Labour in lieu of salary, with the Industrial Accidents collaboration with the worker, and that it is Standards Act, have to limit their own juris- and Occupational Diseases Act (AIAOD).The actually the CSST which makes decisions diction. Since the Act granted exclusive intention was to grant workers more com- within the legal framework established. … jurisdiction to the CSST in dealing with prehensive protection and to deal more “The courts consider that the duty to functional limitations and the ability to fully with work-related injuries. The law accommodate has been developed and return to work,“the arbitrator cannot deal was therefore amended to provide a right to applied in contexts very different from the with these issues and must restrict himself medical assistance and rehabilitation, as well framework of the AIAOD, whose main to disputes which may arise from the as a right to return to work. purpose is to deal with the consequences implementation of the employee’s right to Concurrently, case law relating to the of a work injury within a structured legal return to work.” (our translation). Labour Standards Act and collective labour framework. One of the cornerstones of Indeed, grievance arbitrators feel they agreements imposed upon employers a duty this process is rehabilitation, which falls are bound by the CSST decision on to accommodate, to a reasonable extent, a within the purview of the CSST and is not the ability to perform duties and on func- worker unable to perform his or her duties. left to employers.In this particular context, tional limitations. However, some arbitra- This was based on sections 10, 16 and 20 of the court finds it difficult or even impossi- tors apply the duty to accommodate in the Charter of Rights and Freedoms. ble to integrate the duty to accommodate.” connection with the possibility for the Indeed, ss. 10 and 16 are designed to pre- (our translation). worker to perform other tasks consistent vent discrimination in hiring and conditions with his functional limitations. This of employment, including discrimination 2. Mueller Canada Inc. v. Michel Ouellette, approach implies that the worker victim of related to handicaps or to the use of any Quebec Court of Appeal. 500-09- a work accident may be in a less advanta- means to palliate a handicap.Section 20 rec- 11671-011, May 18, 2004. geous position than a worker with disabil- ognizes distinctions based on a skill or apti- In a matter arising from a complaint under ities unrelated to an occupational injury tude required for a position, referred to as a s. 32 of the AIAOD (discriminatory action or disease. “bona fide occupational requirement.” because of the exercise of a right conferred Indeed,although the injured worker may How does this duty to accommodate by law),the Court ofAppeal stated that“the be entitled to rehabilitation under the law, apply to occupational accidents? The case CSST and the CLP have no jurisdiction nothing obliges an employer to modify the law clearly shows that it is difficult to apply. when there is no prohibited dismissal under worker’s tasks to enable him to return to Both the Commission de la santé et de la sécu- section 32.” (our translation). work. The duty to accommodate, on the rité du travail du Québec (Quebec Workers’ other hand, requires employers to make Compensation Commission, or CSST) and 3. Syndicat des travailleuses et travailleurs de la reasonable efforts to modify the tasks of a the Commission des lésions professionnelles (the Station Mont-Tremblant v. Station Mont- worker who suffers a personal illness. Commission on Occupational Injuries, or Tremblant, 2005 RJDT CLP) consider that the AIAOD is complete Section 349 of the AIAOD provides that Alain Bond c.i.r.c.,is a partner in Miller and that the duty to accommodate under the CSST has exclusive jurisdiction to Thomson’s Employment Law Group whose the Charter does not apply to professional decide on any matter covered by the law, clientele is comprised of employers from the public rehabilitation under this Act. Here are three including the ability of an injured worker to and municipal sectors as well as from the private relevant decisions. perform his or her functions, to occupy an sector.Specializing in labour and employment law, equivalent position if his or her employ- Mr. Bond advises and represents employers in 1. Sylvie Lebrun vs Société des transports ment is no longer available or a suitable matters relating to accreditations and the negotia- de Montréal, 2007 CLP 1668, March position that will take into account the tion and implementation of collective agreements 15, 2007 functional limitations of the worker. or of individual employment contracts. 44 CCCA Canadian Corporate Counsel Association WINTER 2008