In a recent decision, the Supreme Court of Canada has considered the nature and extent of an employer’s duty to accommodate a worker who becomes disabled in a workplace accident: Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3.
All seven judges on the Supreme Court panel agreed that employers have a fundamental human rights obligation to reasonably accommodate injured employees after an accident.
In that case, Mr. Caron was a special educator in Quebec who suffered an injury to his elbow in the course of his duties. At first, the employer gave him a temporary assignment assisting with paperwork and training. When that temporary assignment ended, the employer decided that, given his disability, Mr. Caron could not return to his pre-injury position as a special educator, and indicated that it had no suitable employment for him.
The workers’ compensation tribunal in Quebec decided that the employer’s decision to terminate Mr. Caron was reasonable. Quebec’s statute governing workers’ compensation did not impose a duty to accommodate. Although Quebec’s Charter of Human Rights and Freedoms does contain a duty to accommodate, the tribunal decided that this duty did not apply to the workers’ compensation regime.
The Supreme Court of Canada disagreed. The court found that a duty to accommodate exists under all of Canada’s human rights statutes prohibiting discrimination (para. 30). Quebec’s worker compensation legislation had to be understood in light of those human rights principles.
What is the duty to accommodate? The majority of the court summarized it as follows:
In short, the duty to accommodate requires accommodation [of a disabled employee] 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 (para. 27).
In many other provinces, including Nova Scotia, employers already have a statutory duty to accommodate workers who are injured on the job (see Nova Scotia’s Workers’ Compensation Act, s. 91). However, the ruling may still have an effect outside of Quebec.
As the Toronto Star has pointed out this week, the Supreme Court’s ruling could have particularly significant implications for migrant and temp workers across the country.
The Star piece observes that, while all Ontario employers have a statutory duty to offer re-employment and accommodation to workers after an accident, that obligation only applies if the worker has been continuously employed by the employer for at least a year before their injury.
The same is true in Nova Scotia. Section 90(b) of Nova Scotia’s Workers’ Compensation Act provides that an employer must offer to re-employ an injured worker only if the worker “had been employed by the employer, at the date of the injury, for at least twelve continuous months.”
As noted by the Star, migrant and temp workers may be most likely to benefit from a more rigorous application of the duty-to-accommodate principle to injured workers, in light of the Supreme Court’s decision. This is because they are often immediately terminated or even repatriated after an injury, with no recourse other than workers’ compensation regimes.
Moreover, in Nova Scotia, the statutory duty to accommodate injured workers is limited to a period of two years after the date of the injury, or to the date the worker turns 65, whichever is earlier (Workers’ Compensation Act, s. 92).
Is this enough? Are those who suffer permanent injuries at work owed no long-term accommodation?
Numerous studies have shown that those who suffer permanent impairments in work-related injuries are far more likely to experience poverty in the years following their injury. Further, the Supreme Court has now recognized that an employer’s duty to accommodate is a “a core and transcendent human rights principle” (para. 20) that applies to injured workers, engaging the right to equality and to freedom from discrimination on the basis of disability. Nova Scotia’s Human Rights Act offers broad protection against discrimination in employment on the basis of disability.
In light of the above, can the current limitations on the duty to accommodate injured workers in Nova Scotia’s legislation be justified?
Workers’ compensation regimes are compensatory, no-fault schemes providing for compensation and return-to-work rights after an employment accident. This is distinct from human rights legislation, which has the wider goal of safeguarding fundamental rights, including the right to equality. But in the words of Rowe J.: “Nonetheless, they can intersect in practice” (para. 91).
Employers should seek advice on how to make every reasonable effort to accommodate workers who have been injured on the job to the point of “undue hardship”. Likewise, employees who have found themselves out of work after a workplace injury should seek legal advice to ensure their rights have been respected.
For more information about an employee’s rights and an employer’s obligations regarding human rights and workplace injuries, contact Daniel Wilband.