On May 30, 2019, Quebec Court of Appeal Justice Suzanne Gagné dismissed the motion for leave to appeal the decision of the Quebec Superior Court in Commission scolaire de la Capitale v. Ferland1 presented by the Syndicat de l’enseignement de la région de Québec, a union representing teachers in the Quebec City region.

The denial of leave to appeal put an end to a dispute originating with a grievance filed by the union in which it maintained that school board Commission scolaire de la Capitale was not paying a teacher entitled to an income replacement benefit (IRB) during the summer, the equivalent of an income replacement indemnity under the Act respecting industrial accidents and occupational diseases (the “Act”).

The union had essentially argued that the school board was required to pay the teacher, in addition to her salary pursuant to section 5-10.55 of the collective agreement, the IRB paid to the school board by the provincial labour standards, pay equity and occupational health and safety board (the “CNESST”).

Section 5-10.55 of the collective agreement, which is at the heart of the dispute, provides as follows:

5-10.55

While a teacher is entitled to an income replacement indemnity under the Act respecting industrial accidents and occupational diseases (CQLR), c. A-3.001), until the date of consolidation of the employment injury the teacher is entitled to the remuneration she would have received had she been at work, subject to the following. The calculation of her gross taxable remuneration is as follows: the school board shall make the equivalent of all deductions required by law and the collective agreement, and the resulting net remuneration shall be reduced by the amount of the income replacement indemnity under the Act, and the resulting difference shall be considered the gross taxable remuneration from which the school board shall make all deductions, contributions and assessments required by law and the collective agreement.

For the purpose of applying this clause, the teacher’s remuneration is the remuneration she would have received had she been at work, including any bonus for regional disparities and annual supplements to the extent that the school board has not named a replacement for the teacher responsible for the duties in question.

(emphasis added)

In dismissing the motion for leave to appeal, the Court of Appeal thus confirmed that the judgment rendered by the Superior Court, which endorsed the arguments of the school board, contained no question of fact or law that needed to be resolved by the Court of Appeal. Section 5-10.55 of the collective agreement thus does not allow a regular teacher to receive an IRB, in addition to his or her full salary.

The facts underlying the dispute

A regular full-time teacher sustained an employment injury requiring her to be off work for two weeks. When she returned to work, although the injury was not consolidated by the CNESST, the school board temporarily assigned her administrative tasks for which she received full pay.

When the summer recess began, her temporary assignment was suspended, and it resumed when the school year began at the end of the recess.

During the summer, the school board paid her IRBs as well as an additional amount to ensure that she received all of her annual salary still due to her, in accordance with the calculation of the 10-month adjustment provided for in section 6-8.01 of the collective agreement. During that same period, the CNESST reimbursed the school board for the IRBs it had paid her.

In its grievance the union maintained that during the summer, when the teacher was not at work, the school board should have paid her, in addition to her regular salary, the full amount of the reimbursement it received from the CNESST for that period.

The arbitration award of July 16, 2018

In his award, arbitrator Gilles Ferland decided that the IRBs received by a teacher during the summer recess could not be considered double compensation.

Thus, a teacher could receive both her full salary and IRBs for the same period. In support of his decision, the arbitrator stated that (1) in his view there is no remuneration during the summer recess and the teacher is not considered to be at work, and (2) an IRB does not constitute remuneration, as it is paid to compensate a loss of earnings capacity.

The arbitrator therefore concluded that section 5-10.55 of the collective agreement allows the teacher to be paid the income replacement indemnities that the school board receives from the CNESST, as well as her usual salary.

The Superior Court’s decision of March 28, 2019

The school board applied for judicial review of the arbitrator’s decision.

In his decision, Superior Court Justice Gilles Blanchet analyzed the arbitration award in detail. He first indicated that in his view section 5-10.55 of the collective agreement was free of any ambiguity. He then pointed out that the section provided, simply and clearly, that the school board was required to pay the teacher her regular salary for the entire period of her disability, and in exchange the CNESST would reimburse it an amount corresponding to that of the IRB determined by the CNESST.

Judge Blanchet specified that this mechanism, provided for in the collective agreement, was intended to spare the teaching staff the uncertainty and delays inherent in the CNESST’s indemnification process for occupational accidents or illnesses. He also pointed out that this payment mechanism is set out in section 126 of the Act.

Thus, according to the judge, sections 5-10.55 and 5-10.56 of the collective agreement guarantee a teacher on temporary disability leave that she will receive, without any delay, nothing less than her regular salary, but nothing more. The judge asserts that to conclude otherwise would lead to an absurd result where the teacher would receive double compensation, exceeding the remuneration she was otherwise entitled to.

The judge thus concluded that the school board respected its obligation to provide the teacher with the same remuneration to which she would have been entitled had she not been the victim of an occupational accident or illness, as provided in section 5-10.55.

For those reasons he granted the conclusion sought by the school board in its application for judicial review and quashed the arbitration award.

Dismissal of the motion for leave to appeal

In her decision dismissing the union’s motion for leave to appeal, Justice Suzanne Gagné pointed out that the Superior Court’s decision raised no question of fact or law justifying the intervention of the Court of Appeal.

In its motion, the union maintained that the judge below erred in his characterization of the nature of an IRB. It also took the judge to task for considering that such an indemnity constitutes salary, as it was intended rather to compensate a loss of earnings capacity. In this regard Justice Gagné referred to various portions of the Superior Court’s judgment in order to show that this was not in fact the conclusion that the judge had reached. She pointed out moreover that the judge clearly stated that the characterization of an IRB was not the question at issue.

Thus, whether the judge had decided that an IRB was intended to compensate lost income or to compensate a loss of earnings capacity, he would have come to the same conclusion: i.e. the union’s argument leads to an absurd result, in that it allows a teacher to receive double compensation.

The repercussions of this decision

By dismissing the motion for leave to appeal the Superior Court’s decision, the Court of Appeal has put an end to a dispute whose repercussions for school boards would have been major.

For had the union’s arguments prevailed, a school board would have to pay a teacher receiving an IRB during the summer recess her full salary, without receiving what can be termed a reimbursement from the CNESST for the portion equivalent to the IRB, which portion would also be paid to the teacher.

This decision crystallizes and solidifies a trend in the case law going back 25 years, whereby paying a teacher his or her full salary in addition to the IRB constitutes double compensation.

We encourage all school boards to ensure that their current practices do not allow for such double compensation. And if that is in fact the case, the school board would be well advised to send a written notice to the union informing it of the imminent change that will be made to those practices.

With summer just around the corner, this decision of the Court of Appeal is welcome news indeed!