On May 1, 2014, the Supreme Court of Canada considered whether it is safe to allow teachers to go to work with children in Dionne v. Commission scolaire des Patriotes 2014 SCC 33.

To be fair, the issue was more nuanced than that.

The case originated in Quebec. Quebec’s health and safety scheme allows a pregnant woman to refuse work where the work presents a health or safety danger to herself or her fetus. The employer then has an obligation to offer re-assignment, or if that is not possible the option of “Preventative Withdrawal”. An employee on Preventative Withdrawal stops working and receives income replacement benefits.

Dionne was a pregnant teacher. She was offered a one-day teaching position, but turned it down on the basis that children carry germs and those germs posed a risk to her fetus. Her doctor supported this course of action.

The School Board took the position that as Dionne never began work, she was not a “worker” entitled to the benefits of Preventative Withdrawal. The Board’s position was based on the definition of “worker” in Quebec’s civil code.

The Supreme Court of Canada held Dionne was a “worker” as that term was used in the relevant health and safety legislation, which the Court held provided a broader definition of “worker”.

The Court’s analysis was heavily influenced by the policy behind the legislation:

“The Act therefore protects pregnant women in two significant ways: it protects their health by substituting safe tasks for dangerous ones, and it protects their employment by providing financial and job security.”

While this case clarifies the definition of “worker” under Quebec’s occupational health and safety laws, its significance is broader.

The case demonstrates a continuing trend by the courts toward extending legislated rights to include individuals who may not be in a typical employer-employee relationship. Legislation that is considered remedial is provided a broad reading and the prudent employer is best served by acting on the basis the legislation applies to, rather than excludes, individuals who are providing services but may have once been considered outside the employment relationship.

It may well not be safe for a teacher to go to work with children. Where that is the case and legislation provides a right to refuse unsafe work, an employer has an obligation to comply with that legislation, even if the teacher never does start work or go to the workplace.