Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron 2018 SCC 3 – Workers’ compensation – Human rights – Disability rights
On appeal from a judgment of the Quebec Court of Appeal (2015 QCCA 1048) affirming a decision of Dugré J. (2014 QCCS 2580).
In 2004, C suffered an employment injury that rendered him unable to resume his pre‑injury employment. He was subsequently informed that alternative suitable employment, as defined under the Act respecting industrial accidents and occupational diseases, was not available. At the time, the Commission de la santé et de la sécurité du travail (“CSST”) and, on appeal, the Commission des lésions professionnelles (“CLP”), were the administrative bodies charged with implementing the Act. The CSST informed C that given the unavailability of suitable employment with his employer, it would pursue the rehabilitation process and solutions elsewhere. C argued that this decision was premature and that his rehabilitation process with his employer should continue to ensure implementation of the protections against discrimination in the Quebec Charter of human rights and freedoms (“Charter”), including the employer’s duty to accommodate. On review, the CSST concluded that the duty to accommodate under the Charter does not apply to the Act. The CLP dismissed C’s appeal, finding that the statutory benefits in the legislation represent the full extent of an employer’s duty to accommodate and that additional accommodation measures could not be imposed on an employer. On judicial review, the Superior Court set aside this decision and directed that the case be reconsidered in accordance with the employer’s duty to accommodate under the Charter. The Court of Appeal agreed and concluded that the legislation should be interpreted in accordance with the duty to accommodate under the Charter.
Held (5-2):The appeal should be dismissed.
Per McLachlin C.J. and Abella, Karakatsanis, Wagner and Gascon JJ.: Quebec’s injured worker legislation deals with workers who have become disabled as a result of injuries suffered at their workplace. It is legislation that seeks to prevent unfair treatment of injured workers based on their disability. It offers remedies for the economic, personal and physical consequences of the injuries, and seeks to ensure that the rights of workers are protected as fully as possible so that the disabilities do not result in workplace discrimination. The legislative scheme precludes an injured worker from instituting a civil liability action, which means that under the scheme, there is no other recourse for an injured worker, and no other forum in which to vindicate his or her rights. Any solution for an injured worker accordingly lies in the way the legislative scheme is interpreted and applied.
The issue in this appeal is whether the employer’s duty to reasonably accommodate someone with a disability, a core and transcendent human rights principle, applies to workers disabled at their workplace. The Act sets up a comprehensive scheme for the treatment of injured workers but does not expressly impose a duty to accommodate them. The duty to accommodate requires accommodation to the point that an employer is able to demonstrate that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.
Like all Quebec legislation, the Act should be interpreted in conformity with the Quebec Charter. The duty to reasonably accommodate disabled employees is a fundamental tenet of Canadian and, more particularly, Quebec labour law. Since a core principle of the Charter is the duty to accommodate, it follows that this duty applies when interpreting and applying the provisions of Quebec’s injured worker legislation. There is no reason to deprive someone who becomes disabled as a result of an injury at work of principles available to all disabled persons, namely, the right to be reasonably accommodated. An injured worker’s rights and entitlements under the Act must therefore be interpreted and implemented in accordance with the employer’s duty to reasonably accommodate an employee disabled by a workplace injury. An examination of the Act’s goals and policies as well as the entitlements it sets out – such as reinstatement, equivalent, or suitable employment – reflect a statutory scheme that clearly anticipates that reasonable steps will be taken to assist the disabled worker in being able to work if possible. The duty to reasonably accommodate serves to inform how these entitlements are to be implemented on the facts of any particular case short of undue hardship.
Implementing this duty in light of the Charter does not disrupt the carefully calibrated duties and relationships that are set out in the Act. It merely requires a more robust approach to the implementation of the rights of disabled workers by the CSST and CLP and, by necessary implication, the employer. It ultimately means that the CSST and the CLP have the exclusive remedial authority to impose measures on the employer to do whatever is reasonably possible to accommodate the disabled worker’s individual injury.
Because the CSST and the CLP found that the concept of reasonable accommodation under the Charter did not apply, neither made any factual findings as to whether C was reasonably accommodated. In particular, the CLP did not make any findings about whether the employer would have had suitable employment if it had reasonably accommodated him. The decision of the CLP should be set aside and the matter remitted to the Administrative Labour Tribunal (the CLP’s institutional successor) for reconsideration taking into account the duty to reasonably accommodate.
Per Côté and Rowe JJ.: There is agreement with the majority to remit the matter for a determination of whether the employer has discharged its duty to accommodate in the circumstances, but disagreement in applying a blanket presumption of conformity of the Act with the Charter as this is contrary to the Court’s jurisprudence and to s. 51 of the Charter.
The “Charter values” interpretive principle does not allow the courts to generate in the name of Charter values an interpretation unsupported by the text of the statute. The Act and the Charter have different purposes. The Act is a compensatory, no‑fault scheme for employment injuries. The Charter has the wider goal of safeguarding fundamental rights, including the right to equality. This includes the duty to accommodate. Unlike the Act,the origin of the disability does not matter for the Charter; while it need not be a workplace accident, it includes disability arising from such an accident. The two legal schemes are distinct conceptually, which means that a worker’s Charter rights exist in addition to his or her statutory rights under the Act.
The duty to accommodate in situations such as the present one does not require an employer to create a new position from scratch for a disabled worker. This would not be a reasonable accommodation. Rather, it means that when an employer is looking at available positions, the employer is required to consider whether it has any suitable employment as defined by the Act, and also what its obligations under the Charter require with respect to flexibility in work standards. If what stands in the way of a position being suitable is a reasonable accommodation (to the point of undue hardship), then the employer is required by the Charter to take the steps needed to accommodate the disabled worker.
The decision under review in this case is that of the CLP stating that it could not grant C a remedy under the Charter. Given the importance of this question to the legal system, including the system of administrative justice, the applicable standard of review is correctness. The CLP’s statement to the effect that the Act constitutes the full extent of an employer’s duty to accommodate was accordingly incorrect in that the CLP had the authority and the duty to give effect to C’s Charter rights, as well as to his rights under the Act.
The Court has set out a two‑part inquiry to determine whether an administrative tribunal has jurisdiction to grant various remedies under s. 24(1) of the Canadian Charter. The first question is institutional: Does the tribunal have jurisdiction to grant Charter remedies? If a tribunal has the power to decide questions of law, the answer to this question is “yes”. The second question is specific to the remedy sought: Can the tribunal grant the remedy having regard to its statutory mandate? This question concerns legislative intent. While this framework was set out in the context of the Canadian Charter, there is no reason why the underlying rationale for the framework should not also apply to the Quebec Charter.
In carrying out its statutory mandate, the CLP had (and the Administrative Labour Tribunal now has) jurisdiction to grant remedies under the Charter, including the remedy sought in this case for an order requiring the employer to accommodate Cwhen determining whether it has suitable employment. Indeed, the CLP expressly had the power to decide questions of law and the type of remedy sought here fell within the powers granted to it. Therefore, the CLP erred in determining that its statutory grant of power did not give it authority to decide this matter.
Reasons for judgment: Abella J. (McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ. concurring)
Reasons Concurring in the Result: Rowe J. (Côté J. concurring)
Neutral Citation: 2018 SCC 3
Docket Number: 36605
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
RONA Inc. v. Minister of National Revenue (F.C.)
Taxation – Income tax
The applicant RONA Inc. challenged the notice of requirement for information served under s. 231.2 of the Income Tax Act and s. 289 of the Excise Tax Act, which authorized the respondent Minister of National Revenue to obtain disclosure of the identity of its commercial customers and some of their financial information. The applicant alleged that the commercial credit application form used to prepare the requirement for information had been obtained in violation of the Code of Integrity and Professional Conduct and the tax audit procedures established by the Canada Revenue Agency. The two representatives of the Minister and employees of the Agency who had obtained the form had allegedly not told the clerk at the commercial counter of the RONA store they visited that they were acting in the performance of their duties as representatives of the Minister. Rather, one of the representatives had allegedly presented himself as an individual who wanted to become a construction contractor when he retired and who was inquiring about the procedure for opening a commercial account. The Federal Court authorized service and the Federal Court of Appeal dismissed the appeal.
Manoucher Baradaran v. Her Majesty the Queen in Right of the Province of Ontario, City of Toronto, as represented by the Attorney General of Ontario, Lawyers Professional Indemnity Company (LawPRO), Friedman Law Firm, Patrick Bakos, Real Estate Counsel represent [JOHN DOE] (Ont.)
Civil procedure – Seizure and sale
On January 12, 2016, the Sheriff of the Regional Municipality of York sold the property located at 19 Church Avenue in the City of Toronto at auction for $1,050,000. It had been owned by Mr. Baradaran and/or his wife. The sale was made pursuant to an order that they satisfy costs awards made against them following the dismissals of an action they had filed ($7,750) and their appeal ($750). Pursuant to the costs awards, the creditor filed Writs of Seizure and Sale dated February 19, 2014, and February 24, 2014, with the Toronto and York Regional Sheriffs against various properties, including the Church Avenue property, and made a demand of payment by letter dated September 5, 2014. As the Baradarans had not responded or made payment by July 16, 2015, the creditor requisitioned the Enforcement Office of the Superior Court of Justice in Toronto to begin sale proceedings in respect of the Church Avenue property.
Mr. and Mrs. Baradaran sought to set aside the sale and have the property returned to them arguing that the sale was improvident, that the required process was not followed, and that they were not given notice. Mr. Baradaran acknowledged that they had received notice of the sale on cross-examination during the hearing of the application. The application was dismissed. The Court of Appeal dismissed Mr. Baradaran’s application to adduce new evidence and his appeal.
Gilles Coulombe v. L’Agence du revenu du Québec (Que.)
Taxation – Income tax – Assessment
In 2004, the respondent Agence du revenu du Québec issued a formal demand to the applicant Gilles Coulombe to file his income tax returns for 1998, 1999, 2000 and 2001. The reason for Mr. Coulombe’s failure to file returns was allegedly that he had no income during that period, when he had to live off his savings and he incurred significant capital losses. That situation allegedly arose out of a specific context in which he invested large amounts in a company that made lottery validation machines, which went bankrupt in 2002. After auditing the returns filed, the Agence determined that Mr. Coulombe had failed to report capital gains for 1998 to 2001 from the sale of shares. In 2005, the Agence issued notices of assessment for 1998 to 2001 that imposed a penalty for 2000 and 2001 for failure to file income tax returns and for gross negligence in the making of a false statement or omission in an income tax return, pursuant to ss. 1045 and 1049 of the Taxation Act, CQLR, c. I‑3. In 2005, Mr. Coulombe filed notices of objection, on which decisions were made in 2011. Following those decisions, Mr. Coulombe appealed the four notices of reassessment for the 1998, 1999, 2000 and 2001 taxation years to the Court of Québec. These appeals were dismissed, as was the subsequent appeal to the Court of Appeal of Québec.
Alex Gilmor, Tania Gilmor v. Nottawasaga Valley Conservation Authority, Township of Amaranth (Ont.)
Administrative law – Appeals – Standard of review
In 2009, the Applicants Alex and Tania Gilmor purchased a lot located on a floodplain which is subject to the control of the Nottawasaga Valley Conservation Authority (“NVCA”) pursuant to the Conservation Authorities Act, RSO 1990, c. C.27 (“CAA”). In 2011, the NVCA denied the Applicants’ application for approval to build a home on their lot. The Applicants appealed the NVCA’s decision to the Ontario Mining and Lands Commissioner (“Commissioner”), who found that the Applicants’ proposed development was neither appropriate nor safe and denied approval. The Applicants appealed the Commissioner’s decision to the Divisional Court of the Ontario Superior Court of Justice, which allowed the appeal from Commissioner’s decision. The Court of Appeal reversed this decision on appeal.
Ritlyn Investments Limited v. Estate of Armand Letestu, deceased, by its Litigation Administrator, Christopher Letestu (Ont.)
Courts – Jurisdiction – Limitation of actions
Mr. Letestu rented an apartment from Ritlyn Investments Limited. He was injured from a trip and fall on a loose carpet in his apartment on January 11, 2010. Mr. Letestu died on May 14, 2011 from unrelated causes. His estate brought an action in negligence in the Superior Court on December 15, 2011. The action claimed that Ritlyn Investments knew of the dangerous conditions, but that no steps were taken to fix the carpet. Ritlyn Investments moved to dismiss the action, on the basis that the Superior Court had no jurisdiction. The motion was granted. The Court of Appeal allowed an appeal and set aside the order dismissing the action.
Lianne Tregobov v. Normand Paradis, Irene Paradis, Glen Williams, Saramax Investments Ltd., carrying on business as Century 21 Bachman and Associates, Mantin Consulting Inc., carrying on business as Century 21 Bachman and Associates, 5887381 Manitoba Ltd., carrying on business as Century 21 Bachman and Associates - and between - Lianne Tregobov v. Irene Paradis as executor of the estate of Normand Paradis, deceased, Irene Paradis, Glen Williams, Saramax Investments Ltd., carrying on business as Century 21 Bachman and Associates, Mantin Consulting Inc., carrying on business as Century 21 Bachman and Associates, 5887381 Manitoba Ltd., carrying on business as Century 21 Bachman and Associates - and between - Lianne Tregobov v. David Paradis as litigation administrator of the estate of Normand Paradis, deceased, David Paradis and Brian Paradis as executors of the estate of Irene Paradis, deceased, Glen Williams, Saramax Investments Ltd., carrying on business as Century 21 Bachman and Associates, Mantin Consulting Inc., carrying on business as Century 21 Bachman and Associates, 5887381 Manitoba Ltd., carrying on business as Century 21 Bachman and Associates (Man.)
Property – Real property – Sale of property
Normand and Irene Paradis were an elderly couple who sold their home to Lianne Tregobov in late 2009. When Ms. Tregobov bought the home she was aware of evidence of some previous water infiltration along the north basement foundation wall and that certain foundation repair to the north wall would be required. Unusually heavy rain the following spring resulted in flooding of Ms. Tregobov’s basement. That flooding caused damage to wall paneling which, when removed, disclosed significant basement cracks to the foundation walls. Ms. Tregobov commenced an action alleging fraudulent misrepresentation against the vendors and their real estate agent, Glen Williams, as well for negligent misrepresentation against Mr. Williams. The Court of Queen’s Bench dismissed Ms. Tregobov’s claims on the basis that there was no reliance by Ms. Tregobov upon the representations made by the vendors and Mr. Williams. The Court of Appeal of Manitoba dismissed Ms. Tregobov’s appeal.
9254-8494 Québec Inc., Robert Gingras v. Ville de Québec (Que.)
Civil liability – Causal connection – Evidence
The applicants, Mr. Gingras and his company, 9254-8494 Québec Inc. (collectively “Mr. Gingras”), owned a commercial building in the Charlesbourg sector of the city of Québec. Between 2009 and 2012, Mr. Gingras battled an infestation of rats, which, despite his efforts, only became worse. In 2012, when Mr. Gingras informed the city of the rat infestation, the city took rodent control measures in the sewer for the sector, and a camera revealed two cracks at the bottom of the main line. The city had found the cracks in 2006, unbeknownst to Mr. Gingras, but had seen no urgent need for action because of their location. The following spring, the city found a major new crack in the lateral line near the network connected to the building. The city then repaired the cracks. In the meantime, the building owned by Mr. Gingras was vacated due to the extent of the infestation. Following the work done by the city, Mr. Gingras stripped part of the walls and the infestation went away. However, Mr. Gingras ended up having to demolish the building, which was severely damaged and unsanitary.
In August 2012, Mr. Gingras instituted an action in damages against the city. The action was dismissed by the lower courts. In the trial judge’s view, the city had been negligent by waiting until early May 2012 to repair the crack. However, there was no causal connection between that fault and the damages claimed, since it was impossible to say that the rats had left through the cracks in the lines. The Court of Appeal dismissed the appeal.
Tanja Ivic v. Velibor Boro Lakovic, United Taxi Limited a.k.a. United Taxi Transportation Services (K-W) Ltd., Susan Tosic (Ont.)
Torts – Vicarious liability
Tanja Ivic was at a party late one evening, intoxicated and feeling unwell. A friend called United Taxi to dispatch a taxi to drive Ms. Ivic home. When it arrived for Ms. Ivic, the company’s name was on the roof light and in large graphics on the taxi. Ms. Ivic alleged that she was sexually assaulted in the taxi by the driver, Velibor Lakovic. In addition to suing the driver and the owner and primary operator of the taxi for damages, Ms. Ivic sued the taxi company, pleading that it was vicariously liable for the acts of the driver, that it was negligent, owed her a fiduciary duty and had breached that duty. She did not plead breach of contract.
The Ontario Superior Court of Justice allowed Ms. Ivic’s motion to amend her statement of claim. The court also granted United Taxi’s motion for summary judgment and dismissed Ms. Ivic’s action against the taxi company. The Ontario Court of Appeal dismissed Ms. Ivic’s appeal
T.B. v. M.M., R.M., B.B./B.K. - and - Provincial Director of Adoption of British Columbia (B.C.)
Charter of Rights – Right to equality – Constitutional law
The Respondents’ application for adoption was granted by the Supreme Court of British Columbia. The Applicant’s application for guardianship was dismissed. The Court of Appeal for British Columbia dismissed the Applicant’s appeal.
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