In the Newsletter’s Fall 2009 issue, we reported on a judgment1 in which the Court of Appeal of Québec held that the jurisdiction to determine the scope of an employer’s duty to accommodate an employee who had suffered an employment injury and to decide such employee’s ability to work resided with the Commission de la santé et de la sécurité du travail (CSST), to the exclusion of all other adjudicative bodies. However, is this also the case where an employee, whose employment injury is deemed by the CSST to have consolidated without resulting in any permanent impairment or functional limitation, applies for reinstatement with reasonable accommodation? This is the issue that arbitrator Jean-Pierre Lussier recently decided in an interlocutory award.2
In March of 2007, the complainant suffered an employment injury. In November, the CSST determined that the injury had consolidated as of September 11, 2007. In December, following an administrative review, the CSST confirmed its decision. A few days later, the complainant filed an application with the Commission des lésions professionnelles to challenge the CSST’s decision, followed by a grievance alleging that the employer had discriminated against her due to her disability. She sought to have her right to accommodation enforced and, more specifically, to be reinstated in her employment or in any other equivalent, suitable, or adapted employment, along with compensation for loss of salary and other benefits. The employer objected to the arbitrator’s jurisdiction, arguing that the CSST had exclusive jurisdiction in matters of accommodation following an employment injury, as held by the Court of Appeal in Société des établissements de plein air du Québec.
The arbitrator pointed out that, at the time the case was heard, the Commission des lésions professionnelles (CLP) had upheld the CSST’s original decision, and noted that arbitrators, rather than the CSST, have jurisdiction over the exercise by an employee of his or her right to return to work pursuant to a collective agreement, as per Section 244 of An Act respecting industrial accidents and occupational diseases.3 The grievance in this case was two-pronged: as the employee alleged that she suffered from a disability, she sought, on the one hand, to enforce her right to be accommodated, a right falling under the exclusive jurisdiction of the CSST, and, on the other hand, she sought to be reinstated in her normal employment or any other equivalent employment. However, this latter component of the relief sought falls under the arbitrator’s jurisdiction once the CSST has made a determination with respect to the consolidation of the injury, without any permanent impairment or functional limitation. The arbitrator held that the application for an order to be reinstated and for compensation fell under his jurisdiction, that he had no authority to revisit the CSST’s decision, but that he could, if so warranted, order that the employee be reinstated in her position, and that she be paid damages absent such reinstatement.