In recent years, the job market has changed considerably, especially further to the pandemic and the impacts it has had. Employers and employees in Quebec faced unprecedented situations, and these appear to have led to a significant increase in claims for recognition of psychological occupational injuries, such as adjustment disorders and depression.1 Consequences of long processing times at the Bureau d’évaluation médicale  The increase in psychological injury cases is not without consequences for employers, and it is now common for the evaluation procedure at the Bureau d’évaluation médicale (BEM) to take several years. The considerable amount of time it takes to obtain an opinion from a member of the BEM has a major impact on the management of such occupational injury cases. For example, many healthcare professionals (i.e., attending physicians) categorically refuse to confirm an injury when an employee is waiting for a expert medical opinion from the BEM, which can delay the resolution of a case for several years. Without a BEM opinion on the medical issue in dispute, it is impossible for employers to schedule hearings or even attempt settlement discussions. Furthermore, in some cases, processing times can even lead to the deterioration of the employee’s health. Without an opinion from the BEM, it can be difficult for the employer in question to reintegrate the employee without a specific diagnosis or functional limitations having been established. This also makes it difficult for the employer to put proper measures in place to safely reintegrate the employee in the workplace. Like many other Quebec organizations, the BEM is currently lacking personnel, especially psychiatric experts.2 This specific problem causes many issues for Quebec employers in their management of occupational injury cases, and also generates enormous costs. However, another option to speed up the process is now available. The Paccar Canada (Usine de Ste-Thérèse) case Just recently, the occupational health and safety division of the Administrative Labour Tribunal (ALT) rendered a very interesting decision that provides Quebec employers with a way to obtain a medical expert opinion more quickly as part of a BEM procedure. In this case,3 a worker was injured when she fell in the parking lot of the plant where she works. The CNESST accepted her claim for an occupational injury having caused a contusion to her elbow and wrist, a cervical sprain and a mild concussion. A few months later, the worker’s attending physician diagnosed her with major depression, which the CNESST subsequently recognized as being linked to the initial event. The employer challenged this decision. However, a hearing date cannot be set as long as the procedure is still under way at the BEM, in particular as concerns the diagnosis to be used to rule on whether the psychological injury is admissible. After receiving a medical certificate from the worker’s attending physician confirming the major depression diagnosis, the employer mandated a psychiatrist to assess her. The psychiatrist’s medical opinion differed from that of the attending physician, in particular where the diagnosis was involved. In May 2021, the employer asked the CNESST to request an opinion from the BEM. In June 2021, the CNESST applied the BEM to obtain the opinion of a member, more specifically the opinion of a psychiatrist. A month later, having still not received a notice to report from a member of the BEM, the employer asked the CNESST to designate a health professional so that they could render a medical opinion that would be binding on the parties, asking the CNESST to apply paragraph 3 of section 224.1 of the Act respecting industrial accidents and occupational diseases (AIAOD), which states the following: 224.1. Where a member of the Bureau d’évaluation médicale gives an opinion pursuant to section 221 within the time prescribed in section 222, the Commission is bound by that opinion and shall render a decision accordingly. Where the member of the Bureau d’évaluation médicale fails to give his opinion within the time prescribed in section 222, the Commission is bound by the report obtained from the health professional it designated, where that is the case. If the Commission has not obtained such a report, it may request, from the health professional it designates, a report on the matter mentioned in any of subparagraphs 1 to 5 of the first paragraph of section 212 which is the subject of the contestation; in that case, the Commission is bound by the opinion of the member of the Bureau d’évaluation médicale or the report of the health professional it has designated, whichever it receives first, and shall render a decision accordingly. The Commission shall file in the worker’s record any opinion or report it receives even though it is not bound thereby. Section 222 of the AIAOD stipulates that the member of the BEM must render their opinion within 30 days of the date on which the record was transmitted to them and send it without delay to the Minister, with copies to the CNESST and to the parties. We understand from section 224.1 of the AIAOD that the CNESST is bound by the medical opinion of the designated health professional and must render a decision accordingly, which may then be contested by the employer or worker, as the case may be. This would ultimately allow the parties to be heard by the ALT, which would then render a decision on the merits. In the Paccar case, the CNESST denied the employer’s request for an administrative review of the CNESST’s refusal to refer the case to a health professional, in spite of paragraph 3 of section 224.1 of the AIAOD. This refusal was the crux of the dispute. Thus, the ALT had to determine whether the CNESST should have granted the employer’s request. The ALT did indeed determine that the CNESST should have done so, given the BEM’s inability to appoint a psychiatrist within a reasonable time. The decision The CNESST argued that paragraph 3 of section 224.1 3 of the AIAOD provides discretionary power, as the section indicates that the CNESST may request a report from health professional it designates. In the CNESST’s opinion, the word “may” gives it discretionary power, and it is thus not obliged to designate a health professional in all cases. The ALT explained that considering the objectives of the AIAOD, the BEM procedure must be carried out swiftly and efficiently. Thus, if the BEM is unable to appoint a psychiatrist from among its members within a reasonable amount of time, the objectives of the AIAOD cannot not be achieved, and the result of it becoming impossible to complete the BEM procedure would be entirely inconsistent. Clearly, this was not the government’s intention. In this context, it would be difficult for the CNESST to justify not using its power to designate a health professional, because if it did not do so, the case would no longer move forward, and this would not be good for any of the parties involved, including the CNESST. The ALT concluded that in accordance with section 9 of the Act to establish the Administrative Labour Tribunal,4 it had the power to enforce paragraph 3 of section 224.1 of the AIAOD.In the Paccar decision, the CNESST had undertaken during the hearing to designate a health professional within a short time should the ALT so rule, who would proceed to assess the worker and render a decision accordingly. Practical information to make the process easier At this stage, it is very difficult to predict how the CNESST will apply section 224.1 of theAIAOD in the future. However, we have every reason to believe that many employers will unfortunately find themselves in the same situation as the employer in the Paccar case, if they aren’t already, especially where psychological injuries are involved. It is reasonable to assume that the CNESST will not apply paragraph 3 of section 224.1 of the AIAOD as long as an employer does not formally request that it do so. In the future, we recommend that you closely follow the progress of your BEM request with the CNESST: Once 30 days have passed since you made your request, we recommend that you contact the CNESST agent assigned to your case to find out how far they have gotten in processing your request. If your request has not yet been submitted to the BEM, we recommend that you send a letter to the CNESST in which you request that it apply paragraph 3 of section 224.1 of the AIAOD, and more specifically that it designate a health professional. Remember to ask the CNESST to render a formal decision on your request so that you can apply for its review if it is not in your favour. If you are facing this type of situation, we invite you to consult our team of employment law professionals, who can help you manage your case. For example, in 2021, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) reported a 9% increase in recognized stress-related injuries (1,679 cases in 2021). See portrait-violence-stress-harcelement-2018-2021.pdf (gouv.qc.ca, in French only). AI_M20222152_stat-diverses-bem_MTESS.pdf (quebec.ca, in French only). The BEM has compiled organizational statistics for the period from 2017 to 2022. In particular, the BEM has reported a decrease in the number of opinions it issues, down from 11,045 in 2017–2018 to 9,651 in 2021–2022. The BEM also recorded a considerable increase in the average time taken to process a case (from 69.7 days in 2017–2018 to 138.7 days in 2021–2022). Paccar Canada (Usine de Ste-Thérèse), 2023 QCTAT 3989. T-15.1.

Employers must review their action plan on a daily basis to promote prevention, manage possible or proven contagion among their employees and ensure that business operations continue. Two actions are key: Seeking accurate information from public health officials and governments daily; Taking this information into account when deciding how to meet your obligations to employees while maintaining operations. With the stated objective of containing the spread of the coronavirus, each of us is responsible for adapting our behaviours to an evolving set of circumstances, particularly in the workplace. This new reality impacts the responsibilities of employers. New Directives from The Government of Quebec On March 12, 2020, the province declared a state of emergency and the Quebec government announced the following: All persons returning from abroad or having flu- or cold-like symptoms must voluntarily self-isolate for 14 days; Self-isolation is mandatory and paid for all public service employees and all private and public healthcare, education and daycare workers returning from abroad; Organizations must cancel all indoor gatherings of more than 250 people and any unnecessary gatherings for the next 30 days1. At his press conference, the Premier of Quebec invited private sector employers to take the particular situation facing our society into consideration and to be understanding with employees who must take time off work2. With these measures aimed particularly at establishing social distance to slow the spread of the virus, guidelines have been clarified and may serve as a basis for the needs and requirements of both employers and their employees, taking into account the particularities of each workplace. Obligations in the Workplace Employers must take the measures necessary to protect the health, safety and physical well-being of their employees, their clients and the public. Employees are held to the same standards; that is, to preserve their own health as well as that of their colleagues and any third parties they may be in contact with in the course of or in connection with their work. The Charter of Human Rights and Freedoms, the Act Respecting Occupational Health and Safety, the Canada Labour Code and fundamental principles such as those set out in the Civil Code of Québec provide that individuals must not behave in a way that would cause increased harm to others. They must also act in such a way as not to harm their own health, and, by the same token, that of the people in their workplace. These principles are well known to human resource managers and are foundational to establishing workplace policies and guidelines. Policies and Guidelines for Employees In order to encourage employees to contribute to maintaining a healthy work environment free from contamination risks, employers should diligently inform their employees of their intention to follow government guidelines. Internal guidelines could include the following: Cancelling meetings or other non-essential work events that may promote the spread of the virus; Reminding employees of their obligation to report any situation that may require them to self-isolate; Establishing and informing employees of necessary arrangements should isolation become necessary and telework not be possible; Explaining the steps to follow to plan telework and reminding people of the applicable rules under existing policies and employment contracts regarding the confidentiality of business or personal information used in the workplace; Informing employees about of a contingency plan to define, among other things, emergency contact persons and information transmission protocols; and instructing employees on how to access workplace premises or organize their work in the event of a containment situation. Employee Travel and Professional Activities An employer may cancel any professional activity that could reasonably be expected to pose a risk to the health of its employees, clients or the public. In so doing, an organization modifies its expectations as to workplace deliverables. In the current context and further to the government guidelines issued on March 12, 2020, an employer should: Prohibit all business travel both to affected or unaffected areas; Ask its employees to hold essential meetings by videoconference or other technological means; Provide that any other meeting or professional activity in its offices or elsewhere be held in such a way as to reduce the risk of contagion (e.g., videoconferencing, conference calls, observance of hygiene measures and reasonable distances between people). Isolation of Diagnosed Employees or Preventive Isolation Further to the recommendations of public health authorities and on the basis of the government guidelines issued on March 12, 2020, an employer should require that any employee returning from abroad proceed to self-isolate for 14 days. If the employee shows symptoms before the end of the 14-day isolation period, he or she should contact the services set up by the Ministère de la Santé (1-877-644-4545). A nurse may then refer the employee to a designated COVID-19 clinic if necessary. Prior to permitting such an employee to return to work, an employer should be informed of the outcome of these steps and be satisfied that the employee will not pose a risk to colleagues and clients, which may include requesting a medical certificate from the designated COVID-19 clinic if the employee was referred to one. In the case of business travel at an employer’s request prior to the government directives issued on March 12, 2020, any self-isolation period should be paid. If the travel was personal, the payment and form of remuneration during the self-isolation period depends on certain factors, including: At what moment the decision to maintain the departure was made: before or after the government’s instructions were issued or an explicit employer policy was implemented; Positive or negative diagnosis further to a test; Capacity for telework while in isolation. Should employees be unable to report to work (due to their return from abroad, other reasonable grounds to believe that they may be a carrier, or if they or one of their relatives has tested positive), their employer should consider possible avenues under the employment conditions applicable to each particular employee: Paid leave or other conditions available under the Act respecting labour standards and working conditions or collective agreements in the organization, which must then be agreed upon with the employee in question and with the union’s cooperation, if applicable3; Group disability insurance benefits; Record of Employment for sickness and employment insurance sickness benefits; Quarantine and employment insurance benefits as a result of forced leave from work4; Record of Employment for leave and caregiving benefits; Telework if the employee’s tasks can be performed remotely or adapted to do so. Refusal to work The Act Respecting Occupational Health and Safety allows employees to refuse to perform work if they have reasonable grounds to believe that the performance of said work would expose them to danger for their health, safety or physical wellbeing, or would expose another person to similar danger. This Act also provides for the process by which such refusal must be dealt with. However, the prevention and management of work refusal situations could likely be greatly facilitated if employees are aware of the actions taken by the employer to prevent contamination and other health risks to those present in the workplace. For the protection of employees, suppliers and customers, employers must implement the sanitation measures prescribed by government authorities and make any necessary materials available. It must also encourage its employees to follow sanitation instructions and do the following: Provide access to dispensers for alcohol-based antiseptics, tissues and waste bins; Regularly clean common areas (e.g. meeting rooms, cafeteria, etc.); Provide contact information for Info-Santé and the Ministère de la Santé for additional information or screening. According to the government guidelines issued on March 12, 2020, for work premises that can accommodate 250 or more people, the premises must be prepared, or the number of people limited, or those present must be instructed to remain at least two metres away from each other. Work reorganization In order to maintain their activities and provide service to their clientele, some businesses may find it advantageous to alter the way in which their employees work. In addition to resorting to telework, employers may consider alternative working arrangements to maintain adequate staffing while reducing the risk of spreading the virus: Flexible or modified work schedules or staggered working hours (in accordance with the conditions set out in section 53 of the Act respecting labour standards); Rotating schedules to reduce the number of employees in the workplace at the same time; Solicitation of retirees who can fill absences owing to sickness. Immigration Currently, Canadian immigration authorities have put in place emergency measures for foreign nationals in Canada or abroad whose applications for temporary residence have been delayed because of the closure of Canadian visa application centres in mainland China (among other locations). Extensions have been granted to help applicants to obtain now hard-to-get documents. All other applications and all other components of the Canadian program are not affected at this time. No new medical tests for newcomers have been announced and no specific travel restrictions have yet been adopted, with the exception of self-isolation measures for all those arriving from abroad. Health Canada screening officers are present at some Canadian air and land ports of entry, but this measure is still minimally applied at this time. We expect further restrictions at Canadian ports of entry to be implemented in the coming days as the situation progresses. The Key: Keep your Information Up to Date It is important to make sure that the information that you rely on as an employer to make decisions in the current environment is reliable so that your employees can perform their work safely, and for you to continue offering service to your clients. Prudent HR managers should visit the websites of the competent government authorities to confirm the exact terms of the requirements and guidance that these provide. Each workplace operates in its own context, and employers would do well to plan for various possible solutions depending on their circumstances and considering their specific workforce and the needs of their clientele. The events of the last few days have shown that guidelines can change rapidly (even in the course of a day), especially when the spread of the coronavirus suddenly gains speed or following the directives issued by governments to promote “social distancing” as counter the impacts of a possible mass contamination. The diligent implementation of preventive measures and appropriate action as the situation evolves will help ensure, employers are being responsible while, effectively guarding against future civil or criminal claims. The members of our Labour and Employment and Business Immigration teams are available to answer any questions you may have about measures you are considering or the solutions you are seeking given the realities of your organization and its activities.   Press release on March 12, 2020. See the same Government of Quebec press release. Employee and union cooperation may be necessary if working conditions need to be adjusted at the employer’s request, which may wish to offer paid leave to cover part of the isolation period. The federal government recently amended the conditions applicable to quarantine to suspend the one-week waiting period before Employment Insurance benefits are paid..

During Major Symposium in Montréal held on June 4, our colleagues Michel Desrosiers and Ariane Villemaire discussed the employees’ duty of loyalty under the Civil Code of Québec. In their presentation, they discussed the case of Xit Télécom Inc. and Madysta Constructions Ltée v. Beaumier et al.1 on the scope of injunction orders that the Superior Court recently issued pursuant to the legal duty of loyalty (article 2088 of the Civil Code of Québec). On June 5, 2019, the Court of Appeal upheld these orders, prohibiting two former employees from doing business with their former employer’s customers and becoming the owners of a business in competition with their former employer. Background Two key employees, a vice-president of engineering and a head of business development (the “Defendants”), prepared for almost 12 months the launch of a business that would compete with their current employer, while they were employed by the latter. While still employed, the Defendants solicited their employer’s customers, suppliers and employees in order to persuade them to join their new business project. They also made disparaging comments to customers and employees about their employer and its CEO. Finally, they attempted to illegally appropriate business opportunities they had learned about during their employment. Once the situation was discovered, the employer quickly dismissed the Defendants and took steps to obtain safeguard and injunction orders against them. The debate On the sole basis of the legal obligation of loyalty (article 2088 C.C.Q.), rather than under restrictive clauses provided for in the employment contract, the Superior Court granted the employer interim injunction and safeguard orders in December 2018 and January 2019. In March 2019, the Superior Court issued interlocutory injunction orders for a maximum period of nine months, prohibiting the Defendants from: Using confidential information; Soliciting customers, subcontractors and employees; Doing business with customers appearing on a list filed under seal; Investing, partnering in or otherwise becoming the owner of a business in competition with that of the employer. The Superior Court, in its reasons, noted that: [TRANSLATION] [26] The Court cannot see how it could, at this time, allow the defendants to conduct business with customers to whom they made disparaging comments about the plaintiffs, without thereby giving them free rein to unfairly compete with their former employer. For the past year, until December 20, 2018, said customers who would “solicit” the services of the defendants have been receiving negative messages about the plaintiffs. Allowing the defendants to supposedly respond to the requests of said customers would amount to allowing them to reap the benefits of their unfair competition. This cannot be allowed. (Our emphasis) The Court of Appeal2 agreed with the arguments raised by Carl Lessard and Ariane Villemaire, members of our Labour and Employment Law group. It dismissed the appeal and concluded that the orders were consistent with the principles already recognized by the Court of Appeal3 : [TRANSLATION] [7] Indeed, although in principle the duty of loyalty provided for in article 2088 CCQ must not be interpreted as preventing an employee from competing with his or her former employer, the fact remains that jurisprudence tends to prohibit conduct such as that alleged against the appellants in this case, including slander tactics, benefiting from privileged relationships with customers, and active solicitation of customers during the period of employment. (Our emphasis) The Court of Appeal also concluded that the Superior Court’s decision was reasonable in setting the duration of the prohibitions at nine months given the particular facts of the case. What it means This decision is of great practical interest because it emphasizes that article 2088 of the C.C.Q. prohibits unfair competition with a former employer. Orders may thus be issued on the basis of this provision to protect the rights of employers when such unfair competition takes place during employment despite the absence of valid restrictive clauses. However, this decision also confirms the general principle that the duty of loyalty does not prohibit legal competition with a former employer in the absence of a non-competition clause. Thus, employers should continue to protect their legitimate interests by including non-competition, non-solicitation and confidentiality clauses in employment contracts when the circumstances so require. Our Labour and Employment Law group is available to assist you in drafting, analyzing and defending the means available to employers to protect their rights and business activities.   2019 QCCS 1446 Beaumier c. XIT Télécom inc. , 2019 QCCA 1000 Citing Concentré scientifiques Bélisle inc. c. Lyrco Nutrition inc., 2007 QCCA 676