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

Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron
Collection
Supreme Court Judgments
Date
2018-02-01
Neutral citation
2018 SCC 3
Report
[2018] 1 SCR 35
Case number
36605
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Rowe, Malcolm
On appeal from
Quebec
Notes
SCC Case Information: 36605
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3, [2018] 1 S.C.R. 35
Appeal Heard: March 30, 2017 Judgment Rendered: February 1, 2018 Docket: 36605
Between:
Commission des normes, de l’équité, de la santé et de la sécurité du travail (formerly known as Commission de la santé et de la sécurité du travail)
Appellant
and
Alain Caron
Respondent
- and -
Attorney General of Quebec, Administrative Labour Tribunal (formerly known as Commission des lésions professionnelles), Miriam Home and Services, Conseil du patronat du Québec inc., Ontario Network of Injured Workers’ Groups, Industrial Accident Victims’ Group of Ontario, Centrale des syndicats du Québec and Canadian Union of Public Employees
Interveners
Coram: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté and Rowe JJ.
Reasons for Judgment: (paras. 1 to 58)
Abella J. (McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ. concurring)
Reasons Concurring in the Result: (paras. 59 to 115)
Rowe J. (Côté J. concurring)
Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3, [2018] 1 S.C.R. 35
Commission des normes, de l’équité, de la santé et de la sécurité
du travail (formerly known as Commission de la santé et
de la sécurité du travail) Appellant
v.
Alain Caron Respondent
and
Attorney General of Quebec,
Administrative Labour Tribunal (formerly known as
Commission des lésions professionnelles),
Miriam Home and Services,
Conseil du patronat du Québec inc.,
Ontario Network of Injured Workers’ Groups,
Industrial Accident Victims’ Group of Ontario,
Centrale des syndicats du Québec and
Canadian Union of Public Employees Interveners
Indexed as: Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron
2018 SCC 3
File No.: 36605.
2017: March 30; 2018: February 1.
Present: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté and Rowe JJ.
on appeal from the court of appeal for quebec
Workers’ compensation –– Human rights –– Disability rights –– Return to work –– Duty to accommodate –– Worker, victim of employment injury, requesting that employer’s duty to reasonably accommodate pursuant to Quebec Charter of human rights and freedoms be taken into account in determining availability of suitable employment –– Employer’s duty to reasonably accommodate worker with disability not expressly imposed by applicable legislative scheme –– Whether employer’s duty to reasonably accommodate in accordance with Quebec Charter applies to workers whose disability is caused by employment injury –– Act respecting industrial accidents and occupational diseases, CQLR, c. A-3.001, ss. 236, 239 –– Charter of human rights and freedoms, CQLR, c. C-12, ss. 10, 16.
Legislation –– Interpretation –– Human rights –– “Charter values” interpretive principle –– Legislative scheme entitling workers whose disability is caused by employment injury to return to work with employer –– Employer’s duty to reasonably accommodate worker with disability not expressly imposed by applicable legislative scheme –– Whether legislative scheme should be interpreted to include duty to reasonably accommodate in accordance with Quebec Charter –– Act respecting industrial accidents and occupational diseases, CQLR, c. A-3.001, ss. 236, 239 –– Charter of human rights and freedoms, CQLR, c. C-12, ss. 10, 16.
Administrative law –– Boards and tribunals –– Commission des lésions professionnelles –– Judicial review –– Standard of review applicable to Commission’s decision refusing to apply employer’s duty to reasonably accommodate in accordance with Quebec Charter –– Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001, ss. 236, 239 — Charter of human rights and freedoms, CQLR, c. C‑12, ss. 10, 16.
In 2004, C suffered an employment injury that rendered him unable to resume his pre‑injury employment. He was subsequently informed that alternative suitable employment, as defined under the Act respecting industrial accidents and occupational diseases, was not available. At the time, the Commission de la santé et de la sécurité du travail (“CSST”) and, on appeal, the Commission des lésions professionnelles (“CLP”) were the administrative bodies charged with implementing the Act. The CSST informed C that given the unavailability of suitable employment with his employer, it would pursue the rehabilitation process and solutions elsewhere. C argued that this decision was premature and that his rehabilitation process with his employer should continue to ensure implementation of the protections against discrimination in the Quebec Charter of human rights and freedoms (“Charter”), including the employer’s duty to accommodate. On review, the CSST concluded that the duty to accommodate under the Charter does not apply to the Act. The CLP dismissed C’s appeal, finding 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. On judicial review, the Superior Court set aside this decision and directed that the case be reconsidered in accordance with the employer’s duty to accommodate under the Charter. The Court of Appeal agreed and concluded that the legislation should be interpreted in accordance with the duty to accommodate under the Charter.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Abella, Karakatsanis, Wagner and Gascon JJ.: Quebec’s injured worker legislation deals with workers who have become disabled as a result of injuries suffered at their workplace. It is 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 legislative scheme precludes an injured worker from instituting a civil liability action, which means that under the scheme, there is no other recourse for an injured worker, and no other forum in which to vindicate his or her rights. Any solution for an injured worker accordingly lies in the way the legislative scheme is interpreted and applied.
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 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.
Like all Quebec legislation, the Act should be interpreted in conformity with the Quebec Charter. The duty to reasonably accommodate disabled employees is a fundamental tenet of Canadian and, more particularly, Quebec labour law. Since a core principle of the 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. 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. An examination of the Act’s goals and policies as well as the entitlements it sets out — such as reinstatement, equivalent, or suitable employment — reflect a statutory scheme that clearly anticipates that reasonable steps will be taken to assist the disabled worker in being able to work if possible. The duty to reasonably accommodate serves to inform how these entitlements are to be implemented on the facts of any particular case short of undue hardship.
Implementing this duty in light of the 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. It ultimately means that the CSST and the CLP have the exclusive remedial authority to impose measures on the employer to do whatever is reasonably possible to accommodate the disabled worker’s individual injury.
Because the CSST and the CLP found that the concept of reasonable accommodation under the Charter did not apply, neither made any factual findings as to whether C 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. The decision of the CLP should be set aside and the matter remitted to the Administrative Labour Tribunal (the CLP’s institutional successor) for reconsideration taking into account the duty to reasonably accommodate.
Per Côté and Rowe JJ.: There is agreement with the majority to remit the matter for a determination of whether the employer has discharged its duty to accommodate in the circumstances, but disagreement in applying a blanket presumption of conformity of the Act with the Charter as this is contrary to the Court’s jurisprudence and to s. 51 of the Charter.
The “Charter values” interpretive principle does not allow the courts to generate in the name of Charter values an interpretation unsupported by the text of the statute. The Act and the Charter have different purposes. The Act is a compensatory, no‑fault scheme for employment injuries. The Charter has the wider goal of safeguarding fundamental rights, including the right to equality. This includes the duty to accommodate. Unlike the Act, the origin of the disability does not matter for the Charter; while it need not be a workplace accident, it includes disability arising from such an accident. The two legal schemes are distinct conceptually, which means that a worker’s Charter rights exist in addition to his or her statutory rights under the Act.
The duty to accommodate in situations such as the present one does not require an employer to create a new position from scratch for a disabled worker. 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 as defined by the Act, and also what its obligations under the 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 Charter to take the steps needed to accommodate the disabled worker.
The decision under review in this case is that of the CLP stating that it could not grant C a remedy under the Charter. Given the importance of this question to the legal system, including the system of administrative justice, the applicable standard of review is correctness. The CLP’s statement to the effect that the Act constitutes the full extent of an employer’s duty to accommodate was accordingly incorrect in that the CLP had the authority and the duty to give effect to C’s Charter rights, as well as to his rights under the Act.
The Court has set out a two‑part inquiry to determine whether an administrative tribunal has jurisdiction to grant various remedies under s. 24(1) of the Canadian Charter . The first question is institutional: Does the tribunal have jurisdiction to grant Charter remedies? If a 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. While this framework was set out in the context of the Canadian Charter , there is no reason why the underlying rationale for the framework should not also apply to the Quebec Charter.
In carrying out its statutory mandate, the CLP had (and the Administrative Labour Tribunal now has) jurisdiction to grant remedies under the Charter, including the remedy sought in this case for an order requiring the employer to accommodate C when determining whether it has suitable employment. Indeed, the CLP expressly had the power to decide questions of law and the type of remedy sought here fell within the powers granted to it. Therefore, the CLP erred in determining that its statutory grant of power did not give it authority to decide this matter.
Cases Cited
By Abella J.
Applied: 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; referred to: Société des établissements de plein air du Québec v. Syndicat de la fonction publique du Québec, 2009 QCCA 329; Syndicat canadien des communications, de l’énergie et du papier, section locale 427 v. Tembec, usine de Matane, 2012 QCCA 179; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64; 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; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161; Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591; 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; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Gauthier v. Demers, 2007 QCCA 1433, 65 Admin. L.R. (4th) 222; Gougeon (Re), 1999 CanLII 21577.
By Rowe J.
Applied: 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; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; referred to: Gauthier v. Demers, 2007 QCCA 1433, 65 Admin. L.R. (4th) 222; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R 612; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; 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; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; 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; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Oakes, [1986] 1 S.C.R. 103; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; 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; Association des cadres de la Société des casinos du Québec v. Société des casinos du Québec, 2014 QCCA 603; Université de Montréal v. Québec (Commission des droits de la personne et des droits de la jeunesse), 2006 QCCA 508; 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; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Université McGill v. McGill University Non Academic Certified Association (MUNACA), 2015 QCCA 1943; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157.
Statutes and Regulations Cited
Act respecting administrative justice, CQLR, c. J‑3.
Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001, ss. 1, 2 “benefit”, “employment injury”, “equivalent employment”, “suitable employment”, 4, 32, 48, 49 para. 1, 57(1), 145 et seq., 145, 166, 167, 170, 171, 172, 173 paras. 1 and 2, 174, 176, 181, 235(1), 236, 239, 240, 242 paras. 1 and 2, 244, 255, 281, 326, 349, 351 para. 1, 358, 359, 369 [rep. 2015, c. 15, s. 116], 377 [rep. idem], 378 [rep. idem], 438.
Act to establish the Administrative Labour Tribunal, CQLR, c. T‑15.1, ss. 1 para. 2, 6, 9, 10.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 24(1) .
Charter of human rights and freedoms, CQLR, c. C‑12, preamble, ss. 1 to 38, 1 to 9, 3, 9.1, 10, 16 to 20, 16, 49, 51, 52, 53.
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 6e éd. Cowansville, Que.: Yvon Blais, 2014.
Cormier, France. “La victime de harcèlement et le processus de réadaptation professionnelle”, dans Service de la formation continue du Barreau du Québec, vol. 263, Développements récents en droit de la santé et sécurité au travail. Cowansville, Que.: Yvon Blais, 2007, 113.
APPEAL from a judgment of the Quebec Court of Appeal (Hilton, Bélanger and Schrager JJ.A.), 2015 QCCA 1048, [2015] AZ‑51185251, [2015] J.Q. no 5365 (QL), 2015 CarswellQue 5584 (WL Can.), affirming a decision of Dugré J., 2014 QCCS 2580, [2014] AZ‑51080015, [2014] J.Q. no 5490 (QL), 2014 CarswellQue 5655 (WL Can.), allowing an application for judicial review of a decision of the Commission des lésions professionnelles and remitting the matter for reconsideration, 2012 QCCLP 3625, [2012] C.L.P. 173, [2012] AZ‑50863875, 2012 LNQCCLP 606 (QL). Appeal dismissed.
François Bilodeau and Lucille Giard, for the appellant.
Sophie Cloutier and Frédéric Tremblay, for the respondent.
Patrice Claude, Dana Pescarus and Abdou Thiaw, for the intervener the Attorney General of Quebec.
Marie‑France Bernier, for the intervener the Administrative Labour Tribunal (formerly known as Commission des lésions professionnelles).
Pierre Douville and Isabelle Auclair, for the intervener Miriam Home and Services.
Jean‑Claude Turcotte and Sébastien Parent, for the intervener Conseil du patronat du Québec inc.
Maryth Yachnin, Ivana Petricone and Rachel Weiner, for the interveners the Ontario Network of Injured Workers’ Groups and the Industrial Accident Victims’ Group of Ontario.
Claudine Morin, Nathalie Léger and Amy Nguyen, for the intervener Centrale des syndicats du Québec.
Josée Aubé, Céline Giguère and Julie Girard‑Lemay, for the intervener the Canadian Union of Public Employees.
The judgment of McLachlin C.J. and Abella, Karakatsanis, Wagner and Gascon JJ. was delivered by
[1] Abella J. — The Act Respecting Industrial Accidents and Occupational Diseases[1] governs the workplace injury compensation scheme in Quebec. It stipulates that a worker who becomes disabled as a result of an employment injury receives a number of benefits, including income replacement indemnities, assistance with rehabilitation, and, when certain conditions are met, the “right to return to work” with his or her employer.
[2] An injured worker who is able to return to his or her employment within a certain period of time has the right to be reinstated to his or her pre-injury employment or an equivalent one.[2] If the employment injury renders a worker unable to return to his or her pre-injury employment, there is a right to the first suitable employment that becomes available with the employer.[3]
[3] 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.
[4] 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
[5] 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;
[6] 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.
[7] 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.
[8] At the time, the CSST and, on appeal, the CLP were the administrative bodies charged with implementing the Act.[4] The CSST has exclusive jurisdiction to examine and decide any question under the Act,[5] including findings relating to the ability of workers to return to their pre-injury employment or suitable employment (Société des établissements de plein air du Québec v. Syndicat de la fonction publique du Québec, 2009 QCCA 329 (SEPAQ); Syndicat canadien des communications, de l'énergie et du papier, section locale 427 v. Tembec, usine de Matane, 2012 QCCA 179). It has authority to “render its decisions according to equity and upon the real merits and justice of the case”.[6] Its decision is first reviewed internally[7] and can then be challenged before the CLP,[8] which has exclusive jurisdiction on appeal.[9]
[9] The CLP can make the decision or order that, in its opinion, should have been made.[10] It can decide any question of law or fact necessary for the exercise of its jurisdiction,[11] and can make any order it considers appropriate to safeguard the rights of the parties.[12]
[10] The CSST informed Mr. Caron that, given the fact that there was no suitable employment with Centre Miriam, it would pursue the rehabilitation process and solutions elsewhere. Mr. Caron argued that this decision was premature and that his rehabilitation process with Centre Miriam should continue in order to ensure implementation of the protections against discrimination in the Quebec Charter of Human Rights and Freedoms,[13] including the employer’s duty to accommodate.
[11] On review, the CSST concluded that the duty to accommodate under the Quebec Charter does not apply to the Act.
[12] 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.
[13] 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).
[14] 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
[15] 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).
[16] 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).
[17] 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.
[18] 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.
[19] 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.
[20] 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.
[21] 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.
[22] 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).
[23] 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.]
[24] 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).
[25] 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.]
[26] 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]
[27] 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).
[28] 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.)
[29] 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).
[30] 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).
[31] 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.
[32] 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.
[33] 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.)
[34] 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]
[35] 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.
[36] 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.
[37] Interpreting and implementing the Act in a given case in accordance with the principle of reasonable accommodation is, in fact,