February 23, 2018
Supreme Court of Canada Confirms Workers’ Compensation Schemes Integrate Duty to Accommodate
The Supreme Court of Canada (“SCC”) has affirmed a recent decision of the Quebec Court of Appeal that employers have a duty to accommodate workers within provincial workers’ compensation legislation, even when not explicitly stated.
Similar to workers’ compensation legislation in other jurisdictions, the Quebec Act Respecting Industrial Accidents and Occupational Diseases (the “Act”) provides benefits to workers injured at work, including income replacement and assistance with rehabilitation. The Act also assists injured workers in returning to their pre-injury positions or to the first suitable employment available.
In Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 (“Caron”), a worker sustained a work-related injury that prevented him from returning to his pre-injury position. Despite evidence of two alternative positions that could be made suitable with accommodation, his employer claimed to not have alternative suitable employment available.
The Commission at that time, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “Commission”), accepted the employer’s position and informed the worker that it would seek alternative employment for him elsewhere. The Commission also rejected the worker’s argument that his employer should have accommodated his disability, concluding that the duty to accommodate under the Quebec Charte des droits et liberties de la personne (the “Quebec Charter”) was not applicable to the workers’ compensation framework under the Act. This decision was affirmed by the Tribunal administrative du travail (the “Tribunal”).
On judicial review, the Quebec Superior Court set aside the Tribunal’s decision, finding that the worker’s circumstances should be considered in light of the duty to accommodate as codified in the Quebec Charter. On appeal, the Court of Appeal and the SCC both confirmed that the duty to accommodate should be integrated into the application of the Act, thereby expanding the scope of an employer’s obligations to injured workers.
While the Ontario Workplace Safety and Insurance Act expressly requires employers to accommodate injured workers to the point of undue hardship, several jurisdictions have workers’ compensation legislation that is similar to Quebec’s in that the legislation does not expressly impose this duty. In these jurisdictions, Caron effectively establishes an additional forum in which workers may claim some form of human rights protections where related to a work-related injury or illness.
In this respect, Caron signals a particular need for employers in New Brunswick, Saskatchewan, Alberta, British Columbia, Nunavut and the Northwest Territories, to review workplace practices in light of human rights principles. Workers in these jurisdictions who seek to enforce their rights to reasonable accommodation through workers’ compensation boards and tribunals, rather than human rights tribunals, may now fairly expect employers to provide objective evidence to verify that steps have been taken to accommodate those workers, up to the point of undue hardship.
That said, since all human rights legislation in Canada requires accommodating disabled workers, all employers should ensure that all reasonable steps are taken to accommodate disabled and injured workers to the point of undue hardship – regardless of whether the injury is work-related.
If you have questions regarding the impact of these changes, or steps you can take to reduce their impact, please do not hesitate to contact a Mathews Dinsdale lawyer.