Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron

The issue in this appeal is whether the Commission de la santé et de la sécurité du travail (CSST) and the Commission des lésions professionnelles (CLP) must take into account the employer’s duty to reasonably accommodate an injured worker in determining if and how a return to work is possible under the scheme.

This case is in classic reasonableness territory — the CLP is interpreting the scope and application of its home statute. In my respectful view, however, its conclusion that employers do not have a duty of reasonable accommodation under the scheme, does not survive a reasonableness review.

Background

Alain Caron worked as a special educator at Centre Miriam, a center for persons with intellectual disabilities. On October 20, 2004, Mr. Caron hit his left elbow on a door frame in the course of his duties and developed lateral epicondylitis, or tennis elbow. This was recognized as an employment injury within the meaning of s. 2 of the Act, which states:

“employment injury” means an injury or a disease arising out of or in the course of an industrial accident, or an occupational disease, including a recurrence, relapse or aggravation;

The day after Mr. Caron’s injury, Centre Miriam gave him a temporary assignment as the team leader for the night shift. At the time, Centre Miriam was responsible for transferring patients of the Rivière-des-Prairies Hospital with intellectual or developmental disabilities to locations tailored to their needs, such as specialized residences. Mr. Caron helped with the required paperwork as well as with training and support to new and existing personnel on the night shift.

Centre Miriam ended Mr. Caron’s temporary assignment when the process of transferring persons in its care was completed in 2007. It also decided that, given his disability, Mr. Caron could not return to his pre-injury position as an educator, and indicated that it had no suitable employment for Mr. Caron.

On review, the CSST concluded that the duty to accommodate under the Quebec Charter does not apply to the Act.

The CLP dismissed Mr. Caron’s appeal ([2012] C.L.P. 173). It concluded that the statutory benefits in the legislation represent the full extent of an employer’s duty to accommodate and that additional accommodation measures could not be imposed on an employer. It also concluded that Mr. Caron’s right to return to work had expired.

On judicial review, the Quebec Superior Court set aside the CLP’s decision and directed that the case be reconsidered in accordance with the employer’s duty to accommodate under the Quebec Charter (2014 QCCS 2580).

The Quebec Court of Appeal dismissed the appeal (2015 QCCA 1048). It agreed that the legislation should be interpreted and applied in accordance with the provisions of the Quebec Charter, including the employer’s duty to accommodate. It concluded that this duty under the Quebec Charter should be integrated into the legislation. I agree.

Analysis

Quebec’s injured worker legislation “expresses a well thought‑out social compromise between various contradictory forces” (Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, at para. 114).

The development and purpose of the scheme were described in Béliveau as being to “remov[e] work accidents from the purview of civil liability” (para. 109). The statutory compromise reached in the original legislation in 1909 was that in exchange for avoiding the “uncertainties of civil proceedings” (para. 109) and having to prove an employer’s fault, injured workers were entitled to fault-free, partial and fixed-sum compensation. In exchange, in other words, for workers giving up the possibility of full compensation, employers had to provide partial compensation when an accident occurred. The costs were divided between workers and employers (see de Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64, at para. 42).

When legislative reforms were introduced in 1985, the compensation system was revised but the underlying principles were not. Moreover, under s. 349, any matters contemplated by the scheme were conferred exclusively on the CSST.

Section 438 is the provision that makes the Act an exclusive scheme:

438. No worker who has suffered an employment injury may institute a civil liability action against his employer by reason of his employment injury.

That means that under the scheme,[14] there is no other recourse for an injured worker, and no other forum in which to vindicate his or her rights (SEPAQ; Tembec). Any solution, therefore, lies in the way the legislative scheme is interpreted and applied.

Like similar legislation across Canada, Quebec’s injured worker legislation deals with workers who have become disabled as a result of injuries suffered at their workplace. It is, in effect, legislation that seeks to prevent unfair treatment of injured workers based on their disability. It offers remedies for the economic, personal and physical consequences of the injuries, and seeks to ensure that the rights of workers are protected as fully as possible so that the disabilities do not result in workplace discrimination. The Quebec legislation expressly acknowledges this in s. 32, which states:

32. 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 an employment injury or exercised his rights under this Act.

The issue in this appeal is whether the employer’s duty to reasonably accommodate someone with a disability, a core and transcendent human rights principle, applies to workers disabled at their workplace. The Act sets up a comprehensive scheme for the treatment of injured workers but does not expressly impose a duty to accommodate them.

The Quebec Charter imposes a duty to accommodate in ss. 10 and 16:

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

16. No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.

The issue is whether the legislative scheme should be interpreted to include a duty to accommodate in line with the approach taken pursuant to these provisions of the Quebec Charter.

The duty to reasonably accommodate disabled employees is a fundamental tenet of Canadian and, more particularly, Quebec labour law. The goal of the duty to accommodate in the employment context was summarized by Deschamps J. as being “to ensure that an employee who is able to work can do so. . . . The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship” (Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561, at para. 14; see also Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, at para. 36; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, at p. 544). The duty reflects a choice by legislatures to ensure “that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible” (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (Meiorin), at para. 68).

In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer), McLachlin J. explained that

[e]mployers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. [Emphasis in original; para. 19.]

As McLachlin J. explained in Meoirin, “there may be different ways to perform the job while still accomplishing the employer’s legitimate work-related purpose . . . . The skills, capabilities and potential contributions of the individual claimant and others like him or her must be respected as much as possible” (para. 64).

The duty to accommodate is not unlimited; its scope in any particular case is defined by the symmetrical concepts of “reasonable accommodation” and “undue hardship”. In Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, this Court observed that “[u]ndue hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate” (para. 122), explaining:

The jurisprudence of this Court reveals that undue hardship can be established where a standard or barrier is “reasonably necessary” insofar as there is a “sufficient risk” that a legitimate objective like safety would be threatened enough to warrant the maintenance of the . . . standard . . .; where “such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer” have been taken . . .; where no reasonable alternatives are available . . .; where only “reasonable limits” are imposed on the exercise of a right . . .; where an employer or service provider shows “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual” . . . . The point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain. [Citations omitted; para. 130.]

As Deschamps J. explained in Hydro-Québec,

[w]hat is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances. . . .

. . .

. . . The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. [paras. 12 and 16]

In short, the duty to accommodate requires accommodation to the point that an employer is able to demonstrate “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual” (Moore v. British Columbia (Education), [2012] 3 S.C.R. 360, at para. 49, quoting Meiorin, at para. 38; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp. 518-19; VIA Rail, at para. 130). The relevant considerations depend “on the factors relevant to the circumstances and legislation governing each case” (Via Rail, at para. 123; Central Alberta Dairy Pool, at pp. 520-21).

Deschamps J. in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, stressed that what is involved is an individualized assessment process:

The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee, and the specific circumstances in which the decision is to be made. [para. 22]

(See also VIA Rail, at para. 123.)

Most recently, Gascon J. in his reasons in Stewart v. Elk Valley Coal Corp., [2017] 1 S.C.R. 591, dissenting but not on this point, summarized the operative principles: an employer is not required to establish that it is “impossible . . . to accommodate”, only that nothing else reasonable or practical could be offered; an individualized analysis is required; the duty to accommodate includes both procedural and substantive duties; and the undue hardship threshold means an employer will always bear some sort of hardship (paras. 125-28).

A duty to accommodate has been found under all of Canada’s human rights statutes prohibiting discrimination, including under the Quebec Charter (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), [2015] 2 S.C.R. 789).

This brings us to the heart of this appeal, namely whether the legislative scheme should be interpreted and implemented by taking into account the duty imposed on employers to reasonably accommodate, in light of ss. 10 and 16 of the Quebec Charter.

The tools to address the issues in this case are found in this Court’s decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, [2004] 1 S.C.R. 789, where LeBel J. confirmed that Quebec legislation must be interpreted in accordance with the principles of the Quebec Charter:

In Quebec law, in matters within the jurisdiction of the National Assembly, the Quebec Charter has been elevated to the rank of a source of fundamental law. The interpretation of legislation must draw on its principles. The preliminary provision of the Civil Code of Québec, S.Q. 1991, c. 64, states that the Code, as the jus commune of Quebec, must be interpreted in harmony with the Quebec Charter. [Emphasis added; para. 20.]

It is an approach that has generally been followed in the Quebec jurisprudence. It endorses the view that all Quebec law should be interpreted in conformity with the Quebec Charter. It is, as a result, unnecessary to deal with Mr. Caron’s argument, raised for the first time in this Court, that R. v. Conway, [2010] 1 S.C.R. 765, should be applied.

This approach has also been applied outside Quebec, as this Court noted in Via Rail:

. . . human rights legislation, as a declaration of “public policy regarding matters of general concern”, forms part of the body of relevant law necessary to assist a tribunal in interpreting its enabling legislation. [para. 114]

(See also Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513.)

It was applied to the injured worker legislation by the Quebec Court of Appeal in Gauthier v. Demers (2007), 65 Admin. L.R. (4th) 222. The issue in that case was the meaning of “another good and sufficient reason” under s. 255 of the Act, which states that to rebut the presumption that an action was taken against the worker because of an employment injury or the exercise of a right under the Act, in breach of s. 32 of the Act, the employer must prove that the action was taken for “another good and sufficient reason”. Vézina J.A. emphasized the quasi-constitutional nature of the Quebec Charter and its interaction with other laws:

[translation] In a way, the provisions of the Charter that protect fundamental rights form an integral part of every statute without the statute itself having to say so.

More specifically, the provision of the [Act Respecting Occupational Health and Safety, CQLR, c. S-2.1] that refers to a “good and sufficient reason” must be interpreted as if it included the words “that is consistent with the Charter”. This is the principle of supremacy of the Charter, a quasi-constitutional Act. [paras. 51-52]

Since a core principle of the Quebec Charter is the duty to accommodate, it follows that this duty applies when interpreting and applying the provisions of Quebec’s injured worker legislation. There is no reason to deprive someone who becomes disabled as a result of an injury at work, of principles available to all disabled persons, namely, the right to be reasonably accommodated.

Implementing this duty in light of the Quebec Charter does not disrupt the carefully calibrated duties and relationships that are set out in the Act. It merely requires a more robust approach to the implementation of the rights of disabled workers by the CSST and CLP and, by necessary implication, the employer.

Interpreting and implementing the Act in a given case in accordance with the principle of reasonable accommodation is, in fact, consistent with the scheme’s efforts to enable the worker to return to work. If we examine the Act’s goals and underlying policies, we see a statutory scheme that already clearly anticipates that reasonable steps will be taken to assist the disabled worker in being able to work if possible.

The Act entitles an injured worker to reinstatement in his or her former job, to reassignment to “equivalent employment”, or to hold “suitable employment”, as set out in ss. 236 and 239:

236. A worker who has suffered an employment injury and again becomes able to carry on his employment is entitled to be reinstated by preference to others in his employment in the establishment where he was working when the employment injury appeared or reassigned to equivalent employment in that establishment or in another establishment of his employer.

239. A worker who remains unable to carry on his employment as a result of an employment injury and who becomes able to carry on suitable employment is entitled to hold the first suitable employment that becomes available in an establishment of his employer.

The right conferred by the first paragraph is exercised subject to the rules respecting seniority prescribed by the collective agreement applicable to the worker.

Workers who become able to carry on the employment they held at the time of their injury, are entitled to be reinstated in their pre-injury jobs or to be reassigned to “equivalent employment” with the employer.

“Equivalent employment” is defined in s. 2 as an “employment of a similar nature to the employment held by the worker when he suffered the employment injury, from the standpoint of vocational qualifications required, wages, social benefits, duration and working conditions”. This arises in circumstances where a worker is technically able to do his pre-injury employment but cannot return to it for reasons unrelated to the injury, such as the elimination of the position (France Cormier, “La victime de harcèlement et le processus de réadaptation professionnelle”, in Barreau du Québec, vol. 263, Développements récents en droit de la santé et sécurité au travail (2007), 113; Gougeon (Re), 1999 CanLII 21577 (Que. C.L.P.)).

And under s. 239 of the Act, a worker who becomes able to carry on “suitable employment”, is entitled to the first suitable employment in the workplace. “[S]uitable employment” is defined in s. 2 as an “appropriate employment that allows a worker who has suffered an employment injury to use his remaining ability to work and his vocational qualifications, that he has a reasonable chance of obtaining and the working conditions of which do not endanger the health, safety or physical well-being of the worker, considering his injury”.

Each of these entitlements — reinstatement, equivalent, or suitable employment — is reflective of ensuring “that an employee who is able to work can do so” (Hydro-Québec, at para. 14). And this, in turn, is consistent with the employer’s duty to reasonably accommodate, a duty which informs how these entitlements are to be implemented on the facts of any particular case.

An injured worker’s rights and entitlements under the Act must therefore be interpreted and implemented in accordance with the employer’s duty to reasonably accommodate an employee disabled by a workplace injury, which in turn means that the CSST and the CLP have the exclusive remedial authority, in implementing ss. 236 and 239 of the Act dealing with reinstatement, equivalent, or suitable employment, to impose measures on the employer to do whatever is reasonably possible to accommodate the disabled worker’s individual injury and the circumstances that flow from it.

How then does this apply in the circumstances of this case?

Mr. Caron is relying on his right to return to suitable employment under s. 239 of the Act. Interpreting the provision in accordance with Quebec Charter principles and the objectives of the Act means that the employer has a duty to reasonably accommodate Mr. Caron in determining whether suitable employment is available under s. 239.

Mr. Caron identified two “suitable” jobs at Centre Miriam which he claimed he could perform if he was reasonably accommodated: (1) his pre-injury employment position as an educator, provided that certain modifications were made to accommodate his functional disability, and (2) the team leader position he held during his temporary assignment with Centre Miriam.

Because the CSST and the CLP found that the concept of reasonable accommodation under the Quebec Charter did not apply, neither made any factual findings as to whether Mr. Caron was reasonably accommodated. In particular, the CLP did not make any findings about whether the employer would have had “suitable employment” if it had reasonably accommodated him. It may be that if the employer had considered its duty to accommodate in its search for suitable employment, it would have found other suitable positions for Mr. Caron to occupy.

Given the direction in these reasons that the statutory scheme is to be interpreted and applied in accordance with the employer’s duty to reasonably accommodate under the Quebec Charter, it seems to me that Mr. Caron should be given the opportunity to attempt to vindicate his rights as an injured worker in accordance with the revised approach. I appreciate that these proceedings have been protracted, perhaps even unduly, but important legal principles had yet to be resolved.

I would dismiss the appeal with costs.

The reasons of Côté and Rowe JJ. were delivered by

Rowe J. —

I have had the benefit of reading the reasons of Justice Abella and I agree with her in the result, to remit the matter to the Administrative Labour Tribunal (“ALT”), formerly known as the Commission des lésions professionnelles (“CLP”), for a determination of whether the employer has discharged its duty to accommodate.

Where Justice Abella and I differ is in the approach to attain this result. My colleague takes an approach in which she interprets the legislative scheme “to include a duty to accommodate” (reasons of Abella J., at para. 21) in accordance with the view that “all Quebec law should be interpreted in conformity with the Quebec Charter” (reasons of Abella J., at para. 32 (emphasis in original)). In my view, this goes beyond the approach to statutory interpretation set out by this Court whereby “[t]he interpretation of legislation must draw on [the] principles [of the Quebec Charter]” (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789, at para. 20 (emphasis added)). It also goes beyond what the Quebec Court of Appeal did in Gauthier v. Demers, 2007 QCCA 1433, 65 Admin L.R. (4th) 222, where the Quebec Charter of human rights and freedoms, CQLR, c. C-12 (“Quebec Charter”), was used to conclude that a discriminatory reason could not be “good and sufficient” within the meaning of the Act respecting industrial accidents and occupational diseases, CQLR, c. A-3.001 (“Act”). In effect, my colleague shoehorns the duty to accommodate into an Act that was not created for that purpose and extends the scope of a provision of law. This is contrary to this Court’s jurisprudence and to s. 51 of the Quebec Charter.

As this Court explained in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, the “Charter values” interpretive principle serves a narrow purpose: when faced with two interpretations — one compliant with the Canadian Charter of Rights and Freedoms (“Canadian Charter ”), the other infringing it — courts can apply the presumption of compliance with the Canadian Charter to read the statute in a manner respectful of the Charter value in question. This allows the statute to remain in force — untouched — and interpreted such that it complies with the Canadian Charter . This principle, however, does not allow the courts to generate in the name of Charter values an interpretation unsupported by the text of the statute (Bell ExpressVu, at para. 62; R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612, at para. 12).

Given the nature of the Quebec Charter as a quasi-constitutional instrument and its similarities with the Canadian Charter with respect to derogation, interpretation, and justification, the interpretative role of the courts should operate in a similar way for both instruments. A blanket presumption of conformity with the Quebec Charter could “frustrate true legislative intent, contrary to what is mandated by the preferred approach to statutory construction” (Bell ExpressVu, at para. 64) just as such a blanket presumption could for the Canadian Charter .

Further, while pursuant to s. 53, the Quebec Charter can be used “[i]f any doubt arises in the interpretation of a provision” of an Act, s. 51 of the Quebec Charter “makes a point of stating that the [Quebec] Charter must not, as a general rule, be interpreted so as to extend or amend the scope of a provision of law” (Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, at para. 131). With respect, my colleague’s approach conflicts with these rules.

The analytical path I propose is similar to that taken by the courts below. It is based on the jurisdiction of the CLP and the ALT as administrative tribunals with the power to decide questions of law and to make orders appropriate to vindicate the rights of the parties. This approach maintains the distinct character of the two regimes and corresponds to the Quebec Charter remedies Mr. Caron sought before the CLP.

On October 20, 2004, the respondent, Mr. Alain Caron, developed epicondylitis (often referred to as “tennis elbow”) while carrying out his duties as a special educator at Centre Miriam, a center for persons with intellectual disabilities. He was temporarily re-assigned, the following day, as team leader of the night shift. This re-assignment was possible due to the needs of Centre Miriam at the time; it was receiving a number of patient transfers from another hospital.

On October 6, 2006, the Commission de la santé et de la sécurité du travail (“CSST”) decided that the employment injury had consolidated, leaving permanent impairment and functional limitations. On October 5, 2007, Centre Miriam ended Mr. Caron’s temporary re-assignment because the patient transfer process had been completed. The CSST decided at that point that Mr. Caron could return to his original employment. This decision was contested by Centre Miriam; it was reversed by the CLP in 2009.

On April 16, 2010, Centre Miriam informed the CSST that it did not have suitable employment for Mr. Caron. This was challenged by Mr. Caron’s union on the grounds that Centre Miriam should have taken into account its duty to accommodate pursuant to the Quebec Charter in determining whether there was suitable employment. In the union’s view, there were two positions that would have been available for Mr. Caron, had it done so. The CSST sided with Centre Miriam, on the basis that the Act is a complete accommodation scheme for employment injuries. In the CSST’s view, it follows that there is no need to look to the Quebec Charter to supplement what is provided for under the Act. Centre Miriam terminated Mr. Caron’s employment shortly thereafter.

Mr. Caron contested the CSST’s decision before the CLP. It is this decision that is the subject of judicial review.

In its decision, the CLP recognized that it has the power to decide any question of law necessary to the exercise of its jurisdiction and that this carried with it the authority and the duty to apply the Quebec Charter.

However, the CLP took the view that it was bound by the jurisprudence of the Quebec Court of Appeal and by its own decisions to the effect that measures provided for under the Act exhaust the duty to accommodate. Accordingly, the employer was not required to accommodate Mr. Caron beyond what the Act provided. The CLP also decided that Mr. Caron’s right to work under the Act had expired. The CLP therefore granted Mr. Caron no remedy; it dismissed his appeal.

Mr. Caron sought judicial review before the Superior Court. Dugré J. held that the applicable standard of review was reasonableness. In his view, the question was not one of jurisdiction, but rather whether the CLP made a decision that reasonably balanced Quebec Charter values and the Act.

He found the CLP’s decision to be unreasonable. In his view, the CLP confused the question of whether the employer fulfilled its duties under the Quebec Charter, and the question of whether the Act complies with the Quebec Charter. According to Dugré J., if the absence of suitable employment results from a violation of a right protected by the Quebec Charter — i.e. if the claimant has been discriminated against by reason of his disability resulting from an employment injury — the CLP has the duty to grant a remedy under s. 49 of the Quebec Charter.

Likewise, according to Dugré J., the CLP’s decision that Mr. Caron’s right to return to work had expired was unreasonable. Having decided that it could not rule on whether Mr. Caron had been the victim of discrimination on the basis of his disability, the CLP did not make the proper inquiry regarding whether s. 240 of the Act (which provides that the right to return to work expires two years after the period of continuous absence of the worker as a result of an employment injury) is rendered inoperative due to a conflict with the Quebec Charter. Accordingly, Dugré J. held that the CLP should rehear the matter to decide, first, whether Mr. Caron was a victim of discrimination and, second, whether s. 240 of the Act is rendered inoperative by s. 52 of the Quebec Charter. Dugré J. returned the matter to the CLP to determine whether the employer had discharged its duty to accommodate as required by the Quebec Charter.

Bélanger J.A., with the concurrence of Hilton and Schrager JJ.A., came to a similar conclusion. The Court of Appeal did so applying the correctness standard, on the basis that applying the Quebec Charter is a question of law that is of central importance to the legal system and outside the specialized area of expertise of the administrative decision maker (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 60).

The Court of Appeal held that the CLP had the authority to require an employer to accommodate a disabled employee with respect to suitable employment, as per the Quebec Charter. While the duty to accommodate under the Quebec Charter and relief under the Act evolved in parallel, this does not prevent the CLP from drawing on the Quebec Charter in exercising its authority conferred by the Act. Its power to decide questions of law authorizes it to grant the remedy sought by Mr. Caron. The duty to accommodate stemming from the Quebec Charter and the Act may well overlap.

Regarding the expiry of the right to return to work pursuant to s. 240 of the Act, the Court of Appeal held that the duty to accommodate was incompatible with a mechanical application of a clause which provides for the termination of the employment relationship after a set period of time. The duty to accommodate calls for an individualized assessment making the two-year limit, at most, a factor to be considered, rather than being determinative. The CLP must first decide whether Mr. Caron suffered discrimination based on his disability. Once the circumstances of the case have been examined, then the CLP will be able to make a determination on the two-year limit under s. 240. The appeal against Dugré J.’s decision was dismissed and his order returning the matter to the CLP was affirmed.

The relevant provisions of the Quebec Charter and Act are as follows:

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right

16. No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.

52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.

Act respecting industrial accidents and occupational diseases, CQLR, c. A-3.001

1. The object of this Act is to provide compensation for employment injuries and the consequences they entail for beneficiaries.

The process of compensation for employment injuries includes provision of the necessary care for the consolidation of an injury, the physical, social and vocational rehabilitation of a worker who has suffered an injury, the payment of income replacement indemnities, compensation for bodily injury and, as the case may be, death benefits.

This Act, within the limits laid down in Chapter VII, also entitles a worker who has suffered an employment injury to return to work.

349. The Commission has exclusive jurisdiction to examine and decide any question contemplated in this Act unless a special provision gives the jurisdiction to another person or agency

377. The board has the power to decide any question of law or fact necessary for the exercise of its jurisdiction.

It may confirm, quash or amend a contested decision or order and, if appropriate, make the decision or order that should, in its opinion, have been made initially. [Now repealed. See the Act to establish the Administrative Labour Tribunal, CQLR, c. T-15.1, at s. 9.]

378. The board and its commissioners are vested with the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37), except the power to order imprisonment.

They are also vested with all the powers necessary for the performance of their duties; they may, in particular, make any order they consider appropriate to safeguard the rights of the parties.

No judicial proceedings may be brought against them by reason of an act done in good faith in the performance of their duties. [Now repealed. See the Act to establish the Administrative Labour Tribunal, at ss. 9 and 10.]

This Court has held that deference is owed to a tribunal making a determination within its specialized jurisdiction even when drawing on the Quebec Charter:

Deference is in order where the Tribunal acts within its specialized area of expertise, interprets the Quebec Charter and applies that charter’s provisions to the facts to determine whether a complainant has been discriminated against . . . .

(Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46)

The CLP declined jurisdiction on the basis that the Act was exhaustive of an employer’s duty to accommodate and that it could not grant any remedies in addition to those provided for in the Act (CLP decision, at para. 87). One could view this as a specialized tribunal interpreting its home statute; in such an instance the deferential standard of reasonableness would apply (Dunsmuir, at para. 54).

By contrast, in deciding that it could not grant a remedy under the Quebec Charter, one could characterize the CLP’s decision as one relating to the scope of its statutory grant of power, i.e. its jurisdiction. Under that characterization, the decision would be reviewed on the standard of correctness:

Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. . . . [T]rue jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.

(Dunsmuir, at para. 59)

In the end, I am persuaded by the analysis set out by the Quebec Court of Appeal:

[translation] The question in the instant case relates not to the application of the Charter per se, but to a refusal to apply it.

What this question informs is the obligation of a specialized tribunal in applying its enabling legislation to take the Charter, a quasi-constitutional statute, into account.

In my view, the Quebec legislature did not intend to protect the jurisdiction of a specialized tribunal such as the CLP to decide whether to apply the Quebec Charter. That is also a question of general law that is of importance to the legal system, including the system of administrative justice. The applicable standard is therefore correctness. [paras. 35-37 (CanLII)]

The Act is the current iteration of the historic compromise between employers and employees regarding compensation for work-related injuries through a no-fault scheme for victims of employment injuries. This purpose is set out in the opening section of the Act:

1. The object of this Act is to provide compensation for employment injuries and the consequences they entail for beneficiaries.

The process of compensation for employment injuries includes provision of the necessary care for the consolidation of an injury, the physical, social and vocational rehabilitation of a worker who has suffered an injury, the payment of income replacement indemnities, compensation for bodily injury and, as the case may be, death benefits.

This Act, within the limits laid down in Chapter VII, also entitles a worker who has suffered an employment injury to return to work.

This Court has commented on the compensatory nature of the Act:

The evolution and characteristics of this normative scheme show that it is largely independent from the general law. It expresses a well thought-out social compromise between various contradictory forces. . . . It establishes a compensation system that is based on the principles of insurance and no-fault collective liability, the main purpose of which is compensation and thus a form of final liquidation of remedies.

(Béliveau St-Jacques, at para. 114)

The right to return to work and the right to rehabilitation under the Act are relatively recent additions (see S.Q. 1985, c. 6) to Quebec’s compensation scheme. As explained by the Court of Appeal, the Act itself does not impose a duty to accommodate on the employer; rather, under s. 170 of the Act, the CSST only asks the employer if he has suitable employment available (C.A. reasons, at para. 62). By contrast, the Quebec Charter does impose a duty to accommodate on the employer.

The overarching goal of the Quebec Charter, as stated in its preamble, is the recognition and protection of fundamental rights and freedoms:

Whereas it is expedient to solemnly declare the fundamental human rights and freedoms in a Charter, so that they may be guaranteed by the collective will and better protected against any violation;

The Quebec Charter protects the right to equality and its corollary, the prohibition against discrimination. Section 10 of the Quebec Charter does this in the following terms:

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

Section 10 of the Quebec Charter, however, does not operate in isolation. Rather, its protections operate in conjunction with other protected rights: “. . . the right to non-discrimination cannot serve as a basis for an application on its own and . . . it must necessarily be attached to another human right or freedom recognized by law” (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 54). In the employment context, such rights are set out in ss. 16 to 20 of the Quebec Charter. Thus, the duty to accommodate in the employment context is derived from ss. 10 and 16 of the Quebec Charter operating together.

The duty to accommodate was recognized by this Court in 1985 (a few months after the Act was enacted) (Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536). It requires accommodation by employers to the point of undue hardship. Deschamps J., for a unanimous Court, summarized the duty:

. . . the duty to accommodate implies that the employer must be flexible in applying its standard if such flexibility enables the employee in question to work and does not cause the employer undue hardship. . . .

. . . the goal of accommodation is to ensure that an employee who is able to work can do so. . . . The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

(Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, at paras. 13-14)

Section 52 of the Quebec Charter provides that, save where legislation expressly states the contrary, no provision of any Act may infringe the rights protected in ss. 1 to 38 of the Quebec Charter. Thus, these sections of the Quebec Charter have primacy over other enactments, in the absence of express derogation. Where a provision infringes these sections of the Quebec Charter, the provision is inoperative, subject to justification under s. 9.1 in the case of the rights protected under ss. 1 to 9 (Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 769-71; see also Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791).

Where there is infringement of a right, either by state action or by a private party, s. 49 of the Quebec Charter provides the claimant with various remedies. First, the claimant may be awarded compensatory damages. Second, the claimant may be awarded punitive damages, in the case of unlawful and intentional interference with the claimant’s rights. Third, the claimant may be granted an order for the cessation of the interference with his or her rights. In such a case, the law of civil liberties can go beyond the law of civil liability. As stated by LeBel J.:

It is sometimes necessary to put an end to actions or change practices or procedures that are incompatible with the Quebec Charter even where there is no fault within the meaning of the law of civil liability. . . . Thus, in the context of seeking appropriate recourse before an administrative body or a court of competent jurisdiction, the enforcement of [the law of civil liberties] can lead to the imposition of affirmative or negative obligations designed to correct or bring an end to situations that are incompatible with the Quebec Charter.

(Communauté urbaine de Montréal, at para. 26)

In this case, the remedy that is sought falls under this category; Mr. Caron is seeking a reasonable accommodation by Centre Miriam, an affirmative obligation intended to correct a situation incompatible with the Quebec Charter.

The Act and the Quebec Charter have different purposes. The Act is a compensatory, no-fault scheme for employment injuries. The Quebec Charter has the wider goal of safeguarding fundamental rights, including the right to equality. This includes the duty to accommodate. By contrast, the rights to compensation and to return to work after an employment accident arise from the Act. The two legal schemes are distinct conceptually. Nonetheless, they can intersect in practice.

Inflexibility, short of undue hardship, in the application of an employer’s employment standards is a failure to accommodate and, consequently, a discriminatory practice. Unlike the Act, the origin of the disability does not matter for the Quebec Charter; while it need not be a workplace accident, it includes disability arising from such an accident. A failure by the employer to reasonably accommodate its disabled employee is discriminatory as it constitutes a violation of the disabled employee’s right to equality. Such victims of discrimination are entitled under s. 49 of the Quebec Charter to an order requiring an employer to accommodate them.

The CLP’s statement to the effect that the Act constitutes the full extent of an employer’s duty to accommodate was incorrect in that the CLP had the authority and the duty to give effect to Mr. Caron’s Quebec Charter rights, as well as to his rights under the Act. Put simply, Mr. Caron’s Quebec Charter rights exist in addition to his statutory rights under the Act.

In R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, this Court dealt with whether an administrative tribunal has jurisdiction to grant various remedies under s. 24(1) of the Canadian Charter . The inquiry is twofold. The first question is institutional: Does the tribunal have jurisdiction to grant Charter remedies? If the tribunal has the power to decide questions of law, the answer to this question is “yes”. The second question is specific to the remedy sought: Can the tribunal grant the remedy having regard to its statutory mandate? This question concerns legislative intent.

Certain indicia assist in answering this second question. For instance, prompt and efficient resolution in one tribunal of all matters whose essential character falls within its specialized statutory jurisdiction favours recognizing jurisdiction to grant the remedy sought:

Citizens are permitted to assert their Charter rights in a prompt, inexpensive, informal way. The parties are not required to duplicate submissions on the case in two different fora, for determination of two different legal issues. A specialized tribunal can quickly sift the facts and compile a record for the reviewing court.

(Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at para. 60)

This facilitates vindication of Canadian Charter rights and seeks to avoid the burden and inefficiency of multiple venues; it is better to determine the matter before one administrative tribunal.

Likewise, when Canadian Charter rights are at risk of being infringed, a tribunal will be empowered to rule on incidental Charter questions, unless this jurisdiction is expressly excluded:

. . . where a legislature confers on a court or tribunal a function that involves the determination of matters where Charter rights may be affected, and furnishes it with processes and powers capable of fairly and justly resolving those incidental Charter issues, then it must be inferred, in the absence of a contrary intention, that the legislature intended to empower the tribunal to apply the Charter.

(R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 (“Dunedin”), at para. 75)

In contrast with s. 24(1) of the Canadian Charter , s. 49 of the Quebec Charter is mute on the topic of competent tribunal. The absence of an express limitation, however, does not mean that there is no implicit limitation; not all tribunals are competent to grant remedies under the Quebec Charter. Professors Brun, Tremblay and Brouillet are of this view:

[translation] Section 49 is silent on this subject. Accordingly, it follows that for a tribunal to be competent to rule on a claim under section 49, it must be one that has authority under the ordinary law to grant the remedy sought.

(H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at p. 1082)

While the Conway framework was set out in the context of the Canadian Charter , I see no reason why the underlying rationale for the framework should not also apply to the Quebec Charter. The similarities between the two instruments have led to significant “cross pollination” in the jurisprudence. Of note, this Court has applied the framework for analysis under s. 1 of the Canadian Charter as set out in R. v. Oakes, [1986] 1 S.C.R. 103, to s. 9.1 of the Quebec Charter. This recognizes the similar justificatory purpose of s. 9.1 of the Quebec Charter and s. 1 of the Canadian Charter , notwithstanding differences in the text of the two provisions (Ford, at pp. 769-71; Chaouilli, at paras. 46-48, per Deschamps J.). Conversely, the analytical framework for determining infringements of a person’s freedom of religion initially devised in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, a case regarding s. 3 of the Quebec Charter, has helped frame subsequent jurisprudence regarding s. 2(a) of the Canadian Charter (Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386). The similar nature of s. 24(1) of the Canadian Charter and of s. 49 of the Quebec Charter favours a parallel analytical framework for determining whether an administrative tribunal can grant a remedy under either Charter.

This is not novel. The Quebec Court of Appeal has applied the Conway framework, mutatis mutandis, when determining whether the Commission des relations du travail (now also part of the ALT) had jurisdiction to grant a remedy under the Canadian and Quebec Charters (Association des cadres de la Société des casinos du Québec v. Société des casinos du Québec, 2014 QCCA 603, at paras. 10 and 31 (CanLII)). Further, prior to this Court’s ruling in Conway, the Quebec Court of Appeal stated that, given their similar nature, it followed that a grievance arbitrator, being a court of competent jurisdiction under s. 24(1) of the Canadian Charter , would also be a court of competent jurisdiction under s. 49 of the Quebec Charter (Université de Montréal v. Québec (Commission des droits de la personne et des droits de la jeunesse), 2006 QCCA 508, at para. 55 (CanLII)).

Nonetheless, the Quebec Charter and the Canadian Charter are distinct instruments; as such, they may need to be approached in different ways in various circumstances. The use of the Conway framework in this case in no way precludes or detracts from the possibility that distinct approaches may be warranted, depending on the context.

I would recall that the decision under review is that of the CLP and not the initial decision of the CSST; an appeal to the CLP is de novo (Moulin de préparation de bois en transit de St-Romuald v. Commission d’appel en matière de lésions professionnelles, [1998] C.A.L.P. 574 (Que. C.A.)).

The first part of the Conway inquiry involves a determination as to whether the tribunal has the authority to decide questions of law. Within the Quebec administrative framework, the CSST (now the CNESST) exercises “administrative functions” within the meaning of the Act respecting administrative justice, CQLR, c. J-3, rather than “adjudicative” or quasi-judicial functions. While administrative functions are subject to certain procedural safeguards, they are qualitatively different from adjudicative functions. Notably, adjudicative bodies function in an adversarial setting, presided over by an administrative judge, while administrative bodies give operational effect to legislative schemes in a bureaucratic setting.

The statutory grant of powers to the CSST (now the CNESST) in the Act confers exclusive jurisdiction over questions relating to the Act:

349. The Commission has exclusive jurisdiction to examine and decide any question contemplated in this Act unless a special provision gives the jurisdiction to another person or agency.

The power to decide questions of law generally is not provided for. The administrative, rather than adjudicative, nature of the CSST (now the CNESST) means that it is not a forum to adjudicate issues relating to Quebec Charter rights.

By contrast, the CLP expressly had the power to decide questions of law:

377. The board has the power to decide any question of law or fact necessary for the exercise of its jurisdiction. [Now repealed, see the Act to establish the Administrative Labour Tribunal, at s. 9.]

Its successor, the ALT, has similar jurisdiction pursuant to s. 9 of the Act to establish the Administrative Labour Tribunal. This Court has recognized the jurisdiction of the Administrative Tribunal of Québec to rule on constitutional questions incidental to the exercise of its jurisdiction based on a grant of authority set out in the same words as quoted above (Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257). The answer to the first question under the Conway analysis is therefore “yes”: the CLP (now the ALT) had jurisdiction to grant remedies under the Quebec Charter in relation to issues that arose in carrying out its statutory mandate.

The second leg of the Conway framework asks whether the specific remedy sought fits the tribunal’s statutory framework. The remedy sought in this case is an order that would require Centre Miriam to accommodate Mr. Caron when determining whether it has suitable employment (CLP decision, at para. 14). In my view, the CLP had (and the ALT now has) authority to grant this remedy. Whether granting such a remedy is warranted in the circumstances is another matter, one yet to be determined.

The general considerations noted above in Weber and Dunedin are applicable to this case. The CLP was a sophisticated quasi-judicial tribunal that allowed for thorough exploration of issues through an adversarial process. There was no language in the Act that excluded the power to grant remedies under the Quebec Charter. As well, it is clearly undesirable that Mr. Caron be forced to go first to another forum to obtain a ruling on the Quebec Charter issue and only then appeal to the CLP to obtain a final determination with regard to accommodation.

The CLP was given broad powers to carry out its statutory mandate. As the CLP heard appeals de novo pursuant to s. 377 of the Act, it was not bound by findings of the CSST; rather it could freshly consider facts and issues relevant to the matter before it. The CLP was vested with the powers necessary to the performance of its duties and could make suitable orders to safeguard the rights of parties (s. 378 of the Act). The type of remedy sought here fell within the powers granted to the CLP and now the ALT (see s. 9 of the Act to establish the Administrative Labour Tribunal).

I would respectfully disagree with my colleague’s statement that the effect of s. 438 of the Act is that “there is no other recourse for an injured worker” (reasons of Abella J., at para. 18). Finding that the CLP had authority to make an order requiring a reasonable accommodation does not conflict with this provision. This Court has held that this section “applies to an action for damages under the [Quebec] Charter based on the events that gave rise to the employment injury” (Béliveau St-Jacques, at para. 130). This prohibition is inapplicable here since the remedy sought by Mr. Caron under s. 49 of the Quebec Charter is not grounded in civil liability (Communauté urbaine de Montréal, at para. 26) and is not “by reason of his employment injury” under s. 438 of the Act.

Therefore, in stating that it could not grant a remedy under the Quebec Charter, the CLP erred in determining that its statutory grant of power did not give it authority to decide this matter. This decision was incorrect.

The Quebec Court of Appeal dealt also with the jurisdictional interplay between grievance arbitrators, on the one hand, and the CSST and the CLP, on the other hand, when a collective agreement provides greater benefits than those contained in the Act (Université McGill v. McGill University Non Academic Certified Association (MUNACA), 2015 QCCA 1943). This issue does not arise in this case. I would note only that substantive rights and obligations under the Quebec Charter are incorporated into collective agreements concerning which an arbitrator has jurisdiction (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 23).

The duty to accommodate in situations such as this does not require an employer to create a new position from scratch for a disabled employee. This would not be a reasonable accommodation. Rather, it means that when an employer is looking at available positions, the employer is required to consider whether it has any suitable employment under s. 170 of the Act, for instance, and also what its obligations under the Quebec Charter require with respect to flexibility in work standards. If what stands in the way of a position being suitable is a reasonable accommodation (to the point of undue hardship), then the employer is required by the Quebec Charter to take the steps needed to accommodate the disabled employee. Where the employer fails to do so, the CLP has authority to make an appropriate order.

One can understand the frustration of employees who would have to seek a decision by the CSST, have it reviewed within that organization and then appeal the matter to the CLP where, after a hearing de novo, an order requiring an accommodation may be made. I would offer a few remarks. First, the fact that the CSST cannot compel an employer to accommodate an employee does not mean that the CSST cannot discuss with the employer its duty to accommodate. Indeed, one would hope that the CSST would assist employers to understand not only the rights of workers under the Act, but also those under the Quebec Charter.

Second, the duty to accommodate does not come into existence once the matter is before the CLP. Rather, the duty to accommodate exists by virtue of the Quebec Charter; the CLP adjudicates the application of the duty where there is a dispute between an employer and a disabled employee. Good faith by the employer in the realization of its obligations should mean that the CLP’s involvement will be the exception and not the rule.

Finally, the difference in the jurisdiction of the CSST and the CLP reflects the different roles assigned to each by the Act. The fact that the CLP has a power to decide any question of law and the CSST does not have such power has consequences for what each can do. Adjudicating issues relating to the Quebec Charter is a function for which the CLP is equipped; this differs from the role of expeditious administrative decision maker carried out by the CSST. The National Assembly can revisit this attribution of authority in the future if it so chooses.

Like my colleague, I would dismiss the appeal with costs and return the matter to the ALT for a determination of whether the duty to accommodate has been satisfied in Mr. Caron’s case, and if not, whether the time limit precludes any remedy in the circumstances.