In the April 2007 edition of Focus, we reported on a decision by the Superior Court1 confirming the constitutionality of Section 8 of the Act respecting industrial accidents and occupational diseases2 (hereinafter the "IAODA").
Section 8 IAODA reads as follows:
"This Act applies to a worker who is the victim of an industrial accident outside Québec or who suffers from an occupational disease contracted outside Québec if, when the accident occurs or the disease is contracted, the worker has his domicile in Québec and his employer has an establishment in Québec.
However, where the worker's domicile is not in Québec, this Act applies where the worker had his domicile in Québec at the time of his assignment outside Québec, the work outside Québec is for a duration of not over five years when the accident occurs or the disease is contracted, and his employer has an establishment in Québec."
Briefly, the facts involved a truck driver who lived in Ontario and worked for a company that had an establishment in Quebec. The driver had an accident while performing his duties in the United States. The Commission des lésions professionnelles rejected the employee’s employment injury claim on the grounds that he was not covered by the IAODA: he was not a resident of Quebec when his accident occurred outside Quebec, nor had he resided in Quebec in the five years preceding the accident3.
Recently, the Court of Appeal upheld the Superior Court’s decision and held that Section 8 IAODA does not contravene the free movement of persons in the country or their right to earn a living in any province as guaranteed by Section 6 of the Canadian Charter of Rights and Freedoms4 (hereinafter the "Canadian Charter") since it is an insurance statute which does not deal with working conditions and does not prevent a citizen of another province from working in Quebec. However, the right to work in Quebec does not necessarily entail the right to the protection offered by that province’s legislature. Nor, according to the Court of Appeal, does Section 8 IAODA contravene the right to equality guaranteed by Section 15 of the Canadian Charter, since the place where an employee is domiciled is not a personal trait and therefore cannot be categorized as a ground analogous to the grounds of discrimination listed in Section 155.
Moreover, the Court of Appeal held that where an employee is not covered by the IAODA, he can sue his employer under the civil liability rules.