The new Regulation Respecting Immigration to Québec (“RIQ”), the purpose of which includes fostering the participation of immigrants in the development of Quebec and alleviating the labour shortage currently experienced by many employers in the region, came into force on August 2nd, 2018. The Regulation makes major changes to a number of programs of the Ministère de l’Immigration, de la Diversité et de l’Inclusion (“MIDI”) of Quebec. Previously, the Regular Skilled Workers Program (RSWP), known as the regular process for submitting applications for a Certificat de Sélection du Québec (“CSQ”, Quebec selection certificate), allowed eligible applicants in Quebec to submit a CSQ application at any time. Candidates outside Canada could submit their applications during the application intake period until the quota was reached. Henceforth, it will not be possible to submit a CSQ application under the regular process without first being invited by MIDI to do so. The Regulation Respecting Immigration to Québec establishes a “Declaration of Interest” system under which interested applicants must submit a declaration of interest form and wait to receive an invitation from MIDI before submitting a CSQ application. In addition, priority will be given to applicants who want to settle outside the Montreal metropolitan region and applicants who have a job offer validated by MIDI. The Quebec experience program (“PEQ”, Programme de l’expérience québécoise), a “simplified” program that also leads to the CSQ, has been changed substantially as well. A holder of an open work permit obtained as an accompanying spouse or common-law partner may now apply as the principal applicant in a CSQ application submitted under the PEQ. In addition, the PEQ no longer imposes any requirement regarding the position’s level of specialization. Before August 2nd, 2018, the applicant must have held full-time qualified employment in category 0, A or B of the National Occupational Classification (NOC) for 12 months. Under the new regulation, MIDI will now accept applications from candidates who have held positions in NOC categories C and D.1 MIDI’s investor and entrepreneur programs have also undergone significant changes. For example, the amount of the investment required in the investor program has been raised from $1,200,000 to $2,000,000 and the assets needed have risen from $800,000 to $1,200,000. For the entrepreneur program, there are now two components: the creation of innovative businesses and the creation and acquisition of small and medium-sized businesses in Quebec. Please do not hesitate to contact us if you have questions about the new RIQ, the programs referred to above or the programs’ specific requirements.   The NOC is a tool that that classifies and categorizes occupations in the Canadian labour market. Category 0 corresponds to managers, category A usually requires university education, and category B generally requires college education or apprenticeship training. The least specialized categories are C and D: category C requires secondary school and/or occupation-specific training and category D usually calls for on-the-job training.  

Several reasons may lead an employer to conduct surveillance on an employee, to have him followed without his knowledge and to observe his activities. Rumours that an employee absent from work for health reasons is engaged in activities that are incompatible with his alleged health condition, a questionable diagnosis or contradictory medical evaluations, may raise suspicions. Surveillance therefore enables the employer to ensure that the employee’s absence is legitimate. However, since such a measure is, on its face, a violation of the employee’s privacy, it will only be legal if it complies with specific legislative and jurisprudential parameters. Privacy and the particular nature of the employment context The Charter of Human Rights and Freedoms2 (“Quebec Charter”) and the Civil Code of Québec3 provide the legal framework for assessing the legality of the employer’s decision to conduct surveillance on an employee. Such a decision generally means that there must be an evaluation of the right to privacy as well as the various aspects involved in such a right, such as the right to secrecy and to anonymity.4 However, this right is not absolute and may be restricted in certain circumstances.5 On the other hand, the employment context means that special considerations must be taken into account. Indeed, there is a relationship of legal subordination of the employee to his employer. A corollary to this relationship is the employer’s management rights,6 which can, to some extent, justify the surveillance and control of its employees’ work. Therefore, in some cases, the employer’s interests may take precedence over the employee’s right to privacy. As a result, the courts must often strike a balance between these two types of interests. The dos and don’ts of surveillance In the Bridgestone case,7 the Québec Court of Appeal set out the criteria for the admissibility of evidence obtained by surveillance. In that case, the employer dismissed an employee who had been absent from work for health reasons after obtaining information by way of surveillance. The Court held that the surveillance was, at first glance, an infringement of the right to privacy. In addition, this right is not limited to private places because it follows the person and not the place.8However, the Court noted that this right is not absolute and can be restricted. Therefore, surveillance outside of the workplace will be permitted by section 9.1 of the Quebec Charter and can be admitted into evidence if it is justified on rational grounds and conducted by reasonable means. Grounds The employer may not conduct surveillance on the basis of mere doubts.9 Vague suspicions, rumours or the employer’s impressions10 are insufficient. The employer must have serious grounds for questioning the honesty of the employee’s conduct: There must be a connection between the measures taken by the employer and what is required to ensure the effective operation of the business; The decision to conduct surveillance cannot be a purely arbitrary one applied at random; Reasonable grounds must exist before the decision to conduct surveillance is made. Therefore, the grounds will not be justified by the results of the investigation.11 Means With respect to the methods chosen by the employer, the surveillance must be necessary to verify the employee’s actions.12 In addition, the method must not be abusive or violate the employee’s dignity. Finally, the surveillance must be conducted in the least intrusive manner possible. In Bridgestone, the Court held that the surveillance met this standard because the employee had been filmed for only three days and it was conducted either in public places or in the vicinity of his residence. Application to the facts In the recent decision of Groupe Hexagone et Fortier,13the Administrative Labour Tribunal considered the admissibility of surveillance conducted by the employer. In this case, a video published on social media seemed to demonstrate that an employee on sick leave was in fact quite well. While the employee did not contest the filing of the video as evidence, he subsequently contested the merits of the surveillance conducted by the employer. After admitting the authenticity of the evidence, the tribunal considered the grounds and the means taken by the employer in conducting surveillance on the employee. First, it noted that only inconsistencies or contradictions of a serious medical or factual nature which raised doubts about the worker’s honesty could justify surveillance conducted outside of the workplace.14 In this case, the absence of witnesses to the employee’s workplace accident as well as the vague nature of the medical report were not, in and of themselves, rational or sufficient grounds for initiating the surveillance.15 However, the tribunal found that there were contradictions or inconsistencies between the contents of the video and the worker’s claims relating to his ability to work which were significant enough to raise legitimate questions in the mind of the employer. This was therefore a rational ground for implementing the surveillance. As for the means which were used to conduct the surveillance, the tribunal noted that surveillance is a last resort, and one must therefore assess whether other means were or could be taken to achieve the same purpose.16 In this case, the employer had taken such measures. However, the inconclusive results of the examinations and medical follow-ups, combined with the worker’s having been completely off work and the contents of the video, had made surveillance necessary. Therefore, the infringement of the worker’s privacy was justified on rational grounds and the surveillance was conducted through reasonable means. According to the tribunal, there were no less intrusive means than the surveillance to verify the worker’s honesty,17 particularly given that it was conducted in places which were accessible. Indeed, although the worker submitted that the parking lot and yard of the building where he lived were private places, the tribunal found that, since they were common areas accessible to many people, they were not as private as the worker had claimed.18 Consequences of the illegality of the surveillance Evidence which is obtained under conditions that infringe fundamental rights and freedoms and whose use would tend to bring the administration of justice into disrepute should be rejected.19 However, where evidence is obtained through surveillance in violation of the parameters referred to above, it may still be admitted if its use would not tend to bring the administration of justice into disrepute.20 This would be the case, for example, where the surveillance, while not justified, was conducted in a manner which minimized the impact on the privacy of the individual in question.21 Decision-makers therefore have two things to consider: they must first ask themselves: whether the evidence was obtained in a manner which violates fundamental rights and freedoms, and moreover, whether the use of the evidence would tend to bring the administration of justice into disrepute.22 These two criteria are just as relevant when information is obtained through social media.23 In the case of Hexagone, the video in question was posted on the employee’s public Facebook profile. That case is different from those in which the contents of the Facebook profile is private. In such a case, the criteria set out in the Bridgestone case will be relevant where the employer decides to verify the behaviour of an employee who is absent for health reasons through surveillance of his Facebook profile.24 Conclusion In conclusion, before any employer proceeds with surveillance, it is important to clearly identify the circumstances surrounding the employee’s absence and to understand the inherent risks of surveillance. If the criteria set out in the legislation and in the case law are not met, the evidence obtained in the surveillance could be declared inadmissible by the court. The masculine is used in this text solely for reasons of brevity. CQLR c C-12, ss. 5 and 9.1. CQLR c C-1991, arts. 3, 35, 36 and 2858 [C.C.Q]. Syndicat des travailleuses et travailleurs de Bridgestone Firestone de Joliette (CSN) c. Trudeau [1999] RJQ 2229 [Bridgestone], at p. 38. Section 9.1 of the Quebec Charter provides that “[i]n exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec. In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.” C.C.Q., art. 2085. Bridgestone (see note 4). Ibid., at p. 38. Ibid, at para 30. Kaizra et Gardium Sécurité, 2016 QCTAT 1898 [Kaizra], at para. 61. Ibid, at para 60. Bridgestone, at p. 45. Groupe Hexagone et Fortier, 2016 QCTAT 4128 [Hexagone]. Ibid, at para 78. Ibid, at paras 79 and 81. Ibid, at para 87. Ibid, at paras 87 to 90. Ibid, at paras 92 and 93. Act respecting administrative justice, CQLR, c. J-3, s. 11 [A.A.J.]; art. 2858 C.C.Q. Lessard et Meubles Canadel inc., C.L.P. 187899-04-0207, December 2, 2003, (decision granting the motion for revision) [Lessard]. See, in particular, the case of Kaizra, in which the judge held that while there were other means for verifying the employee’s health condition, the fact that the surveillance was conducted in public places or in the vicinity of the employee’s residence, as well as the employee’s admissions that he had engaged in activities that were not very compatible with his health condition, minimized the seriousness of the infringement of privacy and were admitted into evidence. See Lessard et Transport TFI 22, S.E.C. et Bourgeois, 2015 QCCLP 1114. For example, a serious violation of the employee’s fundamental rights could give way to the tribunal’s obligation to seek the truth. Maison St-Patrice inc. et Cusson, 2016 QCTAT 482. Ibid at para 26.

On June 17, 2016, the Superior Court1 affirmed the 2014 decision of the Commission des lésions professionnelles2 (“CLP”) in Canadelle, s.e.c. and Commission de la santé et de la sécurité du travail.3 This decision put an end to the jurisprudential controversy regarding the application of sections 31 and 327 of the Act Respecting Industrial Accidents and Occupational Diseases4 (“AIAOD” or “the Act”), and settled the following question of law: Does a final decision from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”), recognizing a link between a new diagnosis and an employment injury or initial incident, bar an employer from subsequently seeking a transfer of costs under section 327(1) of the AIAOD? The CLP’s decision After reviewing the factors that can give rise to the application of section 31(1) of the AIAOD, the CLP (represented by a panel made up of three administrative judges) clarified what had previously been a controversial question of law, namely, whether or not a transfer of costs can be sought under section 327 of the Act in cases where a decision of the CNESST recognized a link between the new diagnosis (which purported to be an employment injury arising out of or in the course of care within the meaning of section 31 of the Act) and where the initial event had not been contested. The CLP’s conclusions can be summarized as follows: An injury or illness that arises in the course of a file and is considered a “new diagnosis” can be related either to the employment injury within the meaning of section 2 of the AIAOD or to the care or lack of care within the meaning of section 31, but it cannot be linked to both at the same time. Consequently, when the CNESST renders a decision recognizing the relationship between a new diagnosis and the employment injury or the initial event and this decision is not contested,5 that finding bars a request for the transfer of costs under section 327(1) of the AIAOD. Therefore, an employer that wishes to demonstrate that the new diagnosis actually results from one of the situations to which section 31 of the AIAOD applies must contest the CNESST decision before it becomes final and irrevocable.6 If the decision does in fact become final and irrevocable, the effect would be to establish a link between the employment injury and the new diagnosis, which means that the new diagnosis is considered an employment injury under section 2 of the Act. An employer failing to contest such a decision, or abandoning its challenge of such a decision, has the effect of rendering any subsequent request made under section 327 of the AIAOD inadmissible. The powers granted to the CLP (now the Administrative Labour Tribunal) under section 377 of the AIAOD do not authorize it to challenge or modify a final and irrevocable CNESST decision. The Superior Court’s decision After analyzing the CLP’s decision, the Superior Court found that it was reasonable and that there was no basis on which the Court should interfere with it. Accordingly, the CLP’s conclusions, as summarized above, remain applicable. Commentary The Canadelle decision serves as a reminder that, upon receipt of a CNESST decision, it is vital for an employer to immediately perform a further analysis of the decision in order to be able to make its position known and assert its rights in a timely manner. In cases where a decision recognizes a connection between the new diagnosis and the employment injury or the initial event, once the period provided for in the Act for contesting such a decision has expired, it is too late to allege that the injury arose out of care (or lack thereof) unless one can show reasonable grounds for being relieved from the obligation to apply for a review of the decision within the time period provided for by the Act. When in doubt, the holdings in Canadelle suggest that employers ought to act with an abundance of caution, which might include “preventive” challenges of decisions recognizing a new diagnosis where there is a chance of a remedy being available under section 31 of the AIAOD. 2016 QCCS 2806. On January 1st 2016, when An Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal, S.Q. 2015, c. 15, came into force, the Commission de la santé et de la sécurité du travail (CSST) was replaced by the “Commission des normes, de l’équité, de la santé et de la sécurité du travail” (“CNESST”) and the CLP was replaced by the Administrative Labour Tribunal. For more details about this reform, see the Right to Know newsletter entitled “Bill 42 and the reorganization of the Quebec labour-related institutions” (July 2015). 2014 QCCLP 6290. CQLR, c A-3.001. It should be noted that the CLP draws a distinction between situations where the CNESST renders no specific decision regarding the new diagnosis claimed to be covered by section 31 of the AIAOD, and situations where the CNESST renders a decision finding a link between the new diagnosis and the initial event or the recognized employment injury. (See para 20 of the decision). Section 358 of the AIAOD states that contestation of a CNESST decision must be filed within thirty (30) days of the notification of the decision.

Last June 24th, the Supreme Court of Canada (the “Supreme Court”) rendered judgment in the case of British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority1 (“Fraser”). Briefly, this case involved seven laboratory technicians from the same hospital who had breast cancer. Each of them filed a claim for compensation under the Workers Compensation Act (the “Act”), alleging that their cancer was an occupational disease. In British Columbia, one of the applicable criteria for determining whether there is an occupational disease is that the work must have been of “causative significance” in the development of the illness. Background The claims for compensation were denied by the Workers Compensation Board (the “Board”). The workers appealed this decision to the British Columbia Workers’ Compensation Appeal Tribunal (the “Tribunal”). In a majority ruling, the Tribunal overturned the Board’s decision, holding that a decision-maker can infer causation based on “ordinary common sense”, even in the absence of scientific proof thereof. Following a reconsideration, a judicial review and an appeal, the Tribunal’s decision was set aside and, accordingly, the workers’ claims were dismissed. The workers then filed an appeal to the Supreme Court. Decision of the Supreme Court The Supreme Court considered two issues: (1) the jurisdiction of the Tribunal to reconsider its own decision, and (2) the evidence necessary to establish whether the work done as a laboratory technician was of “causative significance” in the development of the breast cancer. We will focus on the second issue in this newsletter. A majority of the Supreme Court held that a finding of causative significance could be made even in the absence of medical evidence positing or refuting the existence of a causal link. The scientific standards are more stringent than the legal standards for the purposes of establishing causative significance. Furthermore, the Tribunal can take into account other evidence in assessing whether a finding of causative significance can be made. In this case, the two scientific reports that were filed could not establish a link between the cancers and the lab technicians’ work. The Supreme Court nevertheless held that the Tribunal’s decision was reasonable because it was based on other evidence, particularly the higher incidence of breast cancer at the complainants’ workplace, and the fact that the determination of causative significance was a matter that was within the Tribunal’s expertise. It should be noted that Justice Côté gave a strong dissenting opinion on the issue of the evidence necessary to establish causative significance, and on the expertise of the Tribunal. For her, the Tribunal’s decision was based on mere speculation and failed to properly consider the criterion of causative significance. She also stressed, as the British Columbia Court of Appeal had also noted, that the Tribunal did not have expertise in medical matters. Impact in Quebec? Could the Administrative Labour Tribunal (“ALT”) be tempted to follow the principles laid down in Fraser? Firstly, it should be noted that there are several significant distinctions between the relevant law in Quebec and British Columbia. Indeed, British Columbia tribunals must apply the statutory concept of “causative significance” to determine whether a worker has suffered from an occupational disease, while the same concept is not present in the Quebec statute, i.e. the Act respecting industrial accidents and occupational diseases2 (the “AIAOD”). Where the presumption under section 29 of the AIAOD does not apply, section 30 of the same statute places the burden on the worker to show that his disease is “characteristic of” the work he was doing or “directly related to the risks peculiar to that work”.3 There is a further distinction. In its decision, the Supreme Court acknowledges section 250(4) of the British Columbian statute, which provides that where the evidence is “evenly weighted” between the worker and the employer, the Tribunal must resolve it “in a manner that favours the worker”. There is no equivalent under Quebec law. At best, the introductory section of the AIAOD states that [t]he object of this Act is to provide compensation for employment injuries and the consequences they entail for beneficiaries.4 This does not relieve the party on whom the burden of proof lies from establishing the facts he alleges on the balance of probabilities. Evidence of equal probative value on both sides should therefore lead to an adverse decision against the party who holds the burden of proof. Since section 30 of the AIAOD states that the burden is on the worker, he must adduce evidence with greater probative value than the evidence against him.5 If he fails to do so, his claim should be dismissed. Furthermore, both the dissenting judge in the Supreme Court and the British Columbia Court of Appeal cited the fact that the British Columbian Tribunal does not have expertise in medical matters. This principle originally emerged from the decision in Page v. British Columbia (Workers’ Compensation Appeal Tribunal),6 which has been referred to on numerous occasions in the British Columbian case law. In that case, the judge held that the Tribunal could not reject the uncontradicted medical expertise of a psychiatrist who had diagnosed a post-traumatic syndrome and substitute its own expertise — since it had no expertise. On the other hand, in Quebec, the occupational health and safety division of the ALT has medical expertise by virtue of its specialization.7. The ALT can even take judicial notice of [translation] “basic notions where they are generally recognized by the medical community, are not the subject of scientific controversy, do not require special expertise, and have been articulated many times in proceedings before the tribunal.”8 In addition, section 26 of the Regulation respecting evidence and procedure of the Administrative Labour Tribunal9 provides that the “Tribunal shall take judicial notice of generally recognized facts and of opinions and information within its field of specialization”. Furthermore, section 84 of the Act to establish the Administrative Labour Tribunal provides that medical assessors can assist at the hearings.10 In short, the scope of the ALT’s expertise is quite different from that of the British Columbian Tribunal. Additionally, the Supreme Court’s decision in Snell v. Farrel,11 which has been applied by various Quebec tribunals, including the Commission des lésions professionnelles (now the ALT), noted that the scientific standards for establishing a causal link are more stringent than the legal standards. Tribunals should not apply the stricter scientific standard, but rather, the standard of proof mandated by law. Therefore, a tribunal could infer a causal link between the work done and the occurrence of the disease even in the absence of conclusive positive or scientific evidence of the existence of such a link. In other words, a worker can prove his disease is “characteristic of” his work or “related to the risks peculiar to his work” without adducing expert evidence. Thus, in some cases, using similar reasoning to that in the Fraser case, decisionmakers have inferred a causal nexus based only on circumstantial evidence.12 2016 SCC 25. R.S.Q., c. A-3.001. Ibid, s. 30. Ibid, s. 1. Richard (Succession de) et Centre hospitalier Pierre Le Gardeur, 2011 QCCLP 3347, para. 430 and following. 2009 BCSC 493. Luc Côté and Catherine Dubé-Caillé, « La connaissance d’office et la spécialisation de la Commission des lésions professionnelles: de la théorie à la pratique », in S.F.C.B.Q., vol. 360, Développements récents en droit de la santé et sécurité au travail (2013), Cowansville, Éditions Yvon Blais, p. 137; Stéphanie Rainville, « La connaissance d’office de la Commission des lésions professionnelles, une revue de la jurisprudence récente », in Santé et sécurité au travail, vol 17, Cowansville, Éditions Yvon Blais, 2013, p. 225. Vereault et Groupe Compass (Eurest/Chartwell), 2006, no. AZ-50391746 (CLP); Cléroux et SIDO ltée, 2012 QCCLP 3847. R.R.Q., 1981, c. A-3.001, r. 12. R.S.Q., c. T-15.1, s. 84. [1990] 2 SCR 311. Tevan et Centre de réadaptation de l’Ouest de Montréal, [2000] No. AZ-00304563 (C.L.P.), Laverdière et Maison du Bingo de Lévis, 2010 QCCLP 7894.