Accommodation versus compensation

Quebec worker argues human right to accommodation not superseded by workers’ comp


A Quebec worker who was injured at work has won his appeal arguing that his human right to accommodation of his disability was not superseded by the province’s workplace injury compensation scheme.

Alain Caron was a special educator at Centre Miriam, a centre for people with intellectual disabilities in Mont-Royal.

On Oct. 20, 2004, Caron hit his left elbow on a door frame while working at Centre Miriam. He developed lateral epicondylitis, or tennis elbow, as a result.

Due to his limitations from the injury, Centre Miriam temporarily assigned him to be the team leader of the night shift. He handled paperwork and provided training and support to night shift employees involved in the transfer of patients.

In 2007, Centre Miriam’s role in transferring patients was completed and Caron’s responsibilities on the night shift ended. However, his elbow injury prevented him from returning to his pre-injury position of special educator. The centre determined it no longer had suitable employment for Caron.

Quebec’s workers’ compensation body at the time, the Commission de la santé et de la securité du travail (CSST), told Caron that since there was no suitable employment for him at Centre Miriam, it would look for rehabilitation and retraining options.

But Caron felt Centre Miriam should do more to accommodate him and protect his right from discrimination under the Quebec Charter of Rights and Freedoms. He argued that the centre could accommodate him with suitable employment in his pre-injury position as an educator, with certain modifications, or the team leader position he held temporarily.

The CSST determined the duty to accommodate under the Quebec charter didn’t apply to the province’s Act respecting industrial accidents and occupational diseases — the authority for the province’s workplace injury compensation scheme.

After an appeal, the Commission des lésions professionnelles (CLP) agreed in 2012, ruling the statutory benefits from Quebec’s workers’ compensation scheme met the employer’s duty to accommodate.

Once an employee received compensation benefits or was accepted for retraining, there was no further need to accommodate, said the tribunal in dismissing the appeal and ruling that Caron’s right to return to work had expired.

Caron took his case to the Quebec Superior Court in 2014, which disagreed with the earlier findings. The court found the employer’s duty to accommodate under the provincial charter should be factored into the question of suitable employment with the original employer, and it ordered Caron’s case be reconsidered.

The Quebec Court of Appeal agreed and dismissed the CSST’s appeal a year later, determining that the Quebec workplace injury compensation legislation should be considered in accordance with Caron’s human rights under the charter — including the duty to accommodate.

The case made its way to the Supreme Court of Canada, where the country’s top court noted that Quebec’s workers’ compensation system conferred any matters under the scheme exclusively to the CSST, and workers who were injured at work could not launch a civil liability action related to the workplace injury against their employer.

This meant “there is no other recourse for an injured worker, and no other forum in which to vindicate his or her rights,” said the Supreme Court.

The court also noted that Quebec’s injured worker legislation was intended to prevent the unfair treatment of workers based on disabilities resulting from workplace injuries.

The act specifically states  “no employer may dismiss, suspend or transfer a worker or practise discrimination or take reprisals against him, or impose any other sanction upon him, because he has suffered from an employment injury or exercised his rights under this act.”

On the other hand, the Supreme Court acknowledged that “the duty to accommodate disabled employees is a fundamental tenet of Canadian and, more particularly, Quebec labour law,” including the charter.

This duty is not unlimited but rather is limited by the point of undue hardship.

The court also noted that the charter is treated as “a source of fundamental law” and the province’s courts and other decision-makers take the approach that all Quebec law should be interpreted in conformity with the province’s charter.

Since the charter includes the duty to accommodate, injured worker legislation shouldn’t deprive someone who is disabled because of a work injury from the right to be accommodated, much as someone who is disabled from non-work-related reasons, said the top court.

Quebec’s injured worker legislation allows workers to return to their pre-injury employment within a specified time if they’re able to recover sufficiently. If their right to return to work expires after the specified time, they have access to job-search, retraining, or other assistance from the CSST, as well as temporary income replacement benefits.

The Supreme Court found that the legislation allowed for three different possibilities for injured workers — reinstatement, equivalent work or suitable employment — all which ensure “that an employee who is able to work can do so,” which is also consistent with the duty to accommodate.

The Supreme Court also found that the CSST’s services providing assistance for injured workers

getting back into a state of readiness for work — physical, social, and professional rehabilitation plans — are a form of accommodation.

As a result, there was common ground between the injury compensation legislation’s assertion of the right to suitable employment and the Quebec charter’s duty to accommodate, according to the top court.

The Supreme Court determined the CLP should have taken into account the employer’s duty to accommodate under the charter when determining Caron’s right to suitable employment.

The top court followed suit with the lower courts and set aside the CLP’s decision, remitting it to the CLP’s successor, the administrative labour tribunal, to decide by taking into account the duty to accommodate under the charter.

For more information, see:

•Quebec (Commission des norms, de l’equite, de la sante et de la securite du travail) v. Caron, 2018 CarswellQue 141 (S.C.C.).

Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit

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