Preventive Withdrawal Under Quebec Labor Laws: A Legal Commentary

Background

Discuss about the Preventive Withdrawal Under Quebec Labor Laws.

Quebec’s employment legislation is heavily invested in ensuring workplace safety for all its employees. This is evidenced by the Act Respecting Occupational Health and Safety S-2.1 and the Act Respecting Industrial Accidents and Diseases A-3.001. The applications and interpretation of these laws, over the recent years, has adopted a liberal nature to ensure the underlying purpose is met and as such no injustice is meted out on workers, especially pregnant workers who have long suffered discrimination at the hands of the law. This paper serves to offer a concurring commentary on the decision delivered by Abella J in Dionne v Commission scolaire des Patriotes 2014 SCC 33, which preserved the right of a pregnant supply teacher to decline work in an unsafe environment as provided by law. The commentary will focus on the major legal issues drawn from the case which are whether; an employment contract existed, as a contract worker the appellant was entitled to either reassignment or preventive withdrawal and the appellant’s refusal to work served as preclusion from the employment contract. This paper is driven by the persuasion that the judge in Dionne v Commission (2014)[1] was right in her verdict as she opted to apply the law by observing its purpose and effect on the broader society.

In summary, the appellant had worked as a pre-school supply teacher for nearly a year before she became pregnant. Tests conducted by her doctor revealed that she was susceptible to harmful contagious viruses that could be spread by groups of children. Based on this revelation, her doctor completed a Preventive Withdrawal and Reassignment Certificate which attested to her workplace being a health risk. She submitted the certificates to the Certificates to the Commission de la santé et de la sécurité du travail and gave copies of the same to the School Board. The Commission found her eligible for Preventive Withdrawal subject to receipt of a contract which it later confirmed to have been formed in November 2006. The School Board, however, appealed to the Commission des lésions professionnelles (CLP) which found the appellant ineligible on the grounds that there was no contract formed as Ms Dionne was unable to enter the school premises. On judicial review, the Superior Court judges upheld the CLP’s but for one judge who was of the view that Ms Dionne was only exercising her rights as an employee.

Analysis

Over the years, Quebec has made great strides in addressing as well as refining safety regulations at work. In the 70s, an in-depth consultation process was begun to come up with the required techniques to attain the proper health and safety standards in the workplace. The result was the espousal of the Act respecting Occupational Health and Safety in 1979 with the aim of ensuring health and safety at work as well as eradicating any source of injury or illness in the work premises. The protective measures of this Act urge employers to refrain from exposing workers to harmful working conditions all the while empowering workers to be aware of dangerous workplace conditions and availing them the right to refuse work under unsafe conditions.[2]

In Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, the court held that a refusal to work under unsafe conditions did not constitute a refusal to carry out one’s employment obligations. It was merely an exercise of a statutory right.[3] With regard to pregnant women, the law provided for reassignment or immediate withdrawal from an unsafe environment if their health or life, or that of their unborn child, was at risk.[4] These measures allowed women to continue working, or where an alternative assignment was unavailable, to continue earning regardless of their absence from the work premises so as to avoid injustice.[5]

Adella J delivered the court’s judgment stating that the aim of Quebec’s workplace safety laws, as well as complementary legislation on industrial accidents and illnesses, was to ensure financial security for workers who had to result to a Preventive Withdrawal so as to avoid harm at work. The judge was of the opinion that disentitling the appellant from the benefits owed to her, on the grounds that she had refused to enter the work premises, only served to nullify the object of the legislation and penalise pregnant working women for merely exercising their statutory right.[6] It was on these arguments that the appeal was allowed.

The first issue raised in the case is with regard to the existence of an employment contract. In order to determine this issue, there are two questions that should be considered, firstly, who is a worker under the Act and secondly what constitutes an employment contract? Under the Act, a worker is any person performing tasks for an employer under either a contract of employment or apprenticeship regardless of whether they receive payment.[7] It is evident from this explanation that the Act is intent on casting a wide net to encompass as many categories of employees so as to avoid injustice. A contract of employment, as defined by law, is an agreement that enables a person to perform work for pay over a stipulated period of time subject to the control and supervision of the employer.[8]

Conclusion

When applied to the case in question, Ms Dionne carried out the task of teaching pre-school children for her employer for most of the school days in 2006. Her work was under the direction and supervision of the School Board, at a stipulated price and over a specified period of time. These facts prove that, as per legislation, Ms Dionne qualified as a worker and a contract of employment did, in fact, exist between her and the School Board. These principles reflect the views upheld by the deciding court in the case study provided, which was convinced that the interpretation of a ‘worker’ and a ‘contract of employment’ should have been in a manner that was meaningful and relevant to the particular context and in line with the objective of the Act.

The second issue raised in the case study was whether the appellant was eligible for Preventive Withdrawal as well as indemnity under the relevant law. The right to Reassignment and Preventive Withdrawal is provided under ss 40 and 41 of the Act whereby a pregnant worker, after availing a certificate that shows proof that the workplace is unsafe for her or her unborn child, is entitled to a reassignment of duties failure of which she can refuse performance until reassignment or delivery.[9] As it is already evident that the appellant was, in fact, a worker, she was entitled to these rights by law.

The third major issue raised was whether the refusal to work in an unsafe environment precluded the formation of a contract of employment. The law provides that, where a worker is convinced of their exposure to unsafety should they perform their employment duties, they are entitled to refuse to perform until the situation is made safer for them.[10] An employer cannot mete out punishment on any worker, either by dismissal, suspension, transfer or any other discriminatory action should they chose to exercise their right as this refusal is not a termination of the employment contract but an exercise of a statutory right.[11] As Ms Dionne was a worker for the School Board, her refusal to come to work did not constitute a failure to perform her end of the employment contract, she was simply exercising her right to Preventive Withdrawal as the institution had not provided any suitable reassignment for her.

Critics of the decision, in this case, have stated that the court’s finding undermined the CLP and was evidence of the detachment between the law in theory and in practice.[12] However, it is evident that the case has provided a major turning point and relief for cases dealing with vulnerable workers, and most especially women.[13]  Up and until the Supreme Court Decision, Ms Dionne, and others like her, were not considered ‘workers’ for the purposes of Reassignment, Preventive Withdrawal and indemnity.[14] This has since been proved to be a discrimination against an employee which constitutes an injustice.[15] The case will go a long way in ensuring the rights of workers and most specifically pregnant workers in Quebec.

Conclusion

It is clear that the decision in Dionne v Commission (2014) has been met with both criticism and appraise. This is because the judges approached the interpretation of the law more liberally than their lower court counterparts. The decision was driven by the desire to interpret the law in a manner that was in line with its latent objective which served to cure an injustice rather than propagate one. This ensured, and will continue to ensure, that vulnerable workers, especially pregnant women, are able to access all the rights and benefits available to them in the course of their employment and that their pregnancy is not treated as an inability to perform.

Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail). 749 (S.C.R, 1988).

Dionne v. Commission scolaire des Patriotes . 33 (S.C.C, May 1, 2014).

AT & T Corp. v. Hulteen. 1962 (S. Ct., 2009).

Bernier, Liz. "Supreme Court reinforces pregnant worker's right to refuse unsafe work." Canadian Occupational Safety. February 10, 2015. https://www.cos-mag.com/legal/legal-stories-exclusive/4343-supreme-court-reinforces-pregnant-workers-right-to-refuse-unsafe-work.html (accessed September 26, 2016).

Cabiakman v. Industrial Alliance Life Insurance Co. 55 (SCC, 2004).

Cliche, Bernard, Serge Lafontaine, and Mailhot Richard. Traité de droit de la santé et de la sécurité au travail: Le régime juridique de la prévention des accid ents du travail et des maladies professionnelle. 1993: Yvon Blais, Cowansville.

Commission des écoles catholiques de Québec v. Gobeil. 1883 (R.J.Q., 1999).

Daly, Paul. "How (Not) to Conduct Deferential Review: Dionne v. Commission scolaire Patriotes, 2014 SCC 33." Administrative Law Matters. May 1, 2014. https://www.administrativelawmatters.com/blog/2014/05/01/how-not-to-conduct-deferential-review-dionne-v-commission-scolaire-des-patriotes-2014-scc-33/ (accessed January 26, 2016).

Fernand, Morin, and et. al. Le droit de l’emploi au Québec. Montreal: Wilson & Lafleur, 2010.

Katherine, Lippel. "Preventive Reassignment of Pregnant or Breast-Feeding Workers: The Québec Model." New Solutions, 1998: 267.

Lallier, Eric. "Supreme Court of Canada: Does a supply teacher's contract also protect pregnant women?" Norton Rose Fulbright. May 2014. https://www.nortonrosefulbright.com/knowledge/publications/116552/supreme-court-of-canada-does-a-supply-teachers-contract-also-protect-pregnant-women (accessed September 26, 2016).

Mann Lawyers. "Recent decision on a casual worker's rights surrounding her pregnancy." Mann Lawyers. February 11, 2016. https://employmentlawottawa.com/tag/quebec-pregnancy-employment/ (accessed September 26, 2016).

Serge, Lafontaine. “Le retrait préventif de la travailleuse enceinte ou qui allaite: qui décide quoi?”, dans Service de la formation permanente du Barreau du Québec, Développements récents en droit du travail. Cowansville: Qué.: Yvon Blais, 1991.