On May 1, the Supreme Court of Canada rendered a decision on the Preventive Withdrawal of a pregnant worker.
This case concerns a pregnant substitute teacher (D) who decided not to report to work after having accepted ten offers to teach when she learnt from her doctor that she was vulnerable to contagious viruses that could cause harm to her unborn child.
In 2005, after having completed an internship in preschool and elementary education for the Commission scolaire des Patriotes (the School Board), D was added on a list of occasional teachers. She acted as a substitute teacher for the School Board 88.15 days during the 2005-2006 school year and 2.50 days in September 2006.
D learned she was pregnant on September 24, 2006. The following day, she contacted the call center responsible for the to inform them that she was pregnant and that she would not be available to work until she receives test results from her doctor.
On October 5 and November 16, 2006, D's doctor completed two certificates providing for D's Preventive Withdrawal. By doing so, he confirmed that D's workplace was putting D at risk for exposure to a virus that can be spread by groups of children, namely Parovirus B-19 and rubella, which can be harmful for her unborn child.
On November 3 and November 27, 2006, after having received the certificates, the Commission de la santé et de la sécurité du travail (CSST) informed D that she was eligible for Preventive Withdrawal as part of the "For a Safe Maternity Experience" program.
On November 13, 2006, D communicated with the call centre, which offered her a one-day teaching position on the same day. D accepted the offer, but announced that she would not be able to perform her duties, as she was on Preventive Withdrawal. Ten more offers were made to her from the call centre between November 13 and 30, 2006. Each time, D accepted the offer, but then announced that she would not be able to perform her duties, as she was on Preventive Withdrawal.
On December 1 and December 11, 2006, the School Board appealed the CSST's decisions confirming the eligibility of D to Preventive Withdrawal to the Commission des lésions professionnelles (CLP). The CLP overturned the CSST's decisions on the grounds that the protection afforded by the Act Respecting Occupational Health and Safety (OHSA) did not apply to D because her occasional teacher status prevented her from being a "worker" under the OHSA. The CLP further concluded that D was not bound by any employment agreement with the School Board. According to the CLP, the inclusion on the list of occasional teachers did not create any obligation for the School board, nor for D. In fact, the employment agreement of a substitute teacher was for a duration that did not exceed the assignment of the specific substitution. Considering that the inability of D to go into the school due to health risks meant that she was incapable of performing the work required by the School Board, the CLP concluded that no contract of employment had been formed.
Supreme Court of Canada
Rejecting the analysis of the previous courts, the Supreme Court held that under the OHSA, a worker on Preventive Withdrawal who refuses to perform dangerous work does not refuse to execute her employment contract. Rather, the worker is exercising a right expressly provided by the OHSA.
In the opinion of the Supreme Court, a contract was formed on November 13, 2006 when D accepted the School Board's offer to supply teach and therefore, D became a "worker" in accordance with the definition provided at Section 1 of the OHSA.
The Supreme Court explained that D's pregnancy was not an incapacity that prevented her from performing the work, being otherwise available, but rather it was the dangerous workplace that prevented the performance of the assignment. The Supreme Court based its position on the lessons taught by Beetz J. in Bell Canada, to the effect that Preventive Withdrawal is not a failure or an inability to perform the work, but rather it is deemed by the statutory scheme to be a substitution of the work. More specifically, the legislature established a presumption that a pregnant worker who exercises her right to Preventive Withdrawal and refuse to work in a dangerous workplace is deemed to be at work. According to the Supreme Court, to conclude like the previous courts did would frustrate the objectives of the OHSA.
The CLP's conclusion to the effect that D had not entered into an employment agreement because she refused to perform her work in a dangerous workplace did not take into account that she was on Preventive Withdrawal and therefore, was deemed to be "at work" within the meaning of Article 14 of the OHSA.