Canadian Lawyer InHouse

15 CANADIANLAWYERMAG.COM/INHOUSE MAY/JUNE 2018 Workplace Solutions By Élodie Brunet and Zeïneb Mellouli I n Commission des normes, de l'équité, de la santé et de la sécurité du travail v. Caron, the Supreme Court of Canada confirmed that Quebec employers must engage in the process of reasonable accommoda- tion, pursuant to the Quebec Charter of Human Rights and Freedoms where a worker is exercising his right to return to work or seeking suitable employment following an employment injury. WHAT ARE THE MAIN CHANGES RESULTING FROM THE DECISION? Prior to the Court of Appeal's decision in June 2015, the case law held that the rehabilitation measures under the Act respecting Industrial Accidents and Occupational Diseases constituted accommodation measures in and of themselves and, therefore, neither the Commission de la santé et de la sécurité du travail (now the CNESST) or the Commission des lésions professionnelles (now the Administrative Labour Tribunal) were of the view that they had the authority to impose, recommend or suggest other forms of accommodation to an employer. Consequently, they refused to apply the provisions of the AIAOD in light of the Charter. After the Caron decision, the implementation of the employer's duty to accommodate must now go beyond merely applying the provisions of the AIAOD. In addi- tion, employers will now have to ensure that they have conducted a thorough, reasonable accommodation analysis in accordance with the Charter. HOW WILL THIS AFFECT EMPLOYERS? For Quebec employers, the main consequences of the Caron decision can be summarized as follows: Employers must try to reasonably accommodate a worker whose employment injury resulted in functional limitations and cannot limit themselves to simply claim- ing that there is no suitable employment available within the business. Employers will have the burden of proving that they made an effort to reinstate the worker and, where neces- sary, to reasonably accommodate them up to the point of undue hardship or even rearrange the worker's tasks so that the worker can perform their duties. The one- or two-year period, as the case may be, during which a worker can exercise the right to return to work under s. 240 of the AIAOD is simply one factor, among others, to be considered in determining whether the duty to accommodate has been fulfilled. It is not, however, determinative. In other words, employers cannot simply revert to an automatic application of this provision. Where the employer has failed to adequately assess the possibility of finding suitable employment for the worker, the ALT may exercise its authority to impose accommodation measures on the employer or issue an order to pay the worker moral or punitive damages. Due to the broad investigative powers of the CNESST and the remedies that can be sought by workers, employ- ers will need to document all steps taken in this regard in order to argue that they did conduct a serious analysis of the worker's situation. In light of the decision in Caron, the process of finding suitable employment may become more complex and sen- sitive for all parties involved as employers will have to con- duct an in-depth analysis in order to demonstrate that they actively sought a reasonable accommodation. Caron will, in all likelihood, change the way all participants (including the CNESST, employers, workers and their unions) ap- proach the process of seeking suitable employment. Of course, workers and their unions will also have a duty to co-operate in searching for suitable employment. If employers have a duty to accommodate, workers have a corollary duty to accept any reasonable accommoda- tion proposed. IH Case confirms Quebec employers' duty to accommodate workers with employment injury The process of finding suitable employment may become more complex and sensitive for all parties involved. Élodie Brunet, CHRP, is a lawyer and Zeïneb Mellouli is a partner at Lavery de Billy LLP Employers will need to document all steps taken in this regard in order to argue that they did conduct a serious analysis of the worker's situation.

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