Labour and Employment

On February 19, 2025, the government introduced Bill 89, a piece of legislation that is essentially designed to regulate strikes and lockouts to limit their impact on the population. The Bill proposes major changes to the QuebecLabour Code,1 including granting special powers to the Minister of Labour to force binding arbitration on the parties in order to break a bargaining deadlock. It also introduces a new category of “services ensuring the well-being of the population,” i.e., services that may be maintained in the event of a labour dispute. Special powers granted to the Minister The Bill would allow the Minister to force the partiesinto binding interest arbitration provided that conciliation or mediation has failed and the Minister considers that the labour dispute is causing or threatens to cause serious or irreparable harm to the population. Such powers would not apply to labour disputes in the public and parapublic sectors.2 The strike or lockout would end at the time indicated in the notice sent to the parties. If the parties cannot agree on the choice of arbitrator, the Minister will appoint an arbitrator ex officio.3 The parties would still have the option to settle the dispute outside of arbitration, and the arbitrator would have no power to amend the resulting settlement agreement.4 Failing agreement, the arbitrator would break the deadlock by ruling on the employees’ working conditions. The new powers are similar to those of the Federal Minister of Labour, who can refer disputes to the Canada Industrial Relations Board under the Canada Labour Code.5 The Board then investigates the matter and decides on the necessary steps to resolve the issue. This mechanism has been used to order employees back to work in major disputes, such as the Canada Post mail strike in December 2024.Services to be maintained to ensure the well-being of the population The Labour Code currently provides that essential services must remain available during labour disputes to safeguard the health and safety of the public.6 However, it does not cover certain cases where a strike could cause major social or economic disruption. From 1982 to 2019, it was solely up to the government, on recommendation of the Minister, to pass orders in council directing the parties to maintain essential services. This gave the executive branch discretionary power to assess whether an anticipated strike posed a significant danger.7 The main goal was to protect the public against social and economic turmoil.8 In 2019, that power was taken away from the government and given to the Administrative Labour Tribunal (“ALT”). The ALT now decides whether certain services must remain available during a strike and, if so, assesses whether the essential service levels are adequate. However, in some cases, the ALT has applied a strict interpretation of the criteria for determining which essential services must be maintained. This is what happened, for example, with public transit in the Capitale-Nationale region, where bus service was not deemed essential during a drivers’ strike.9 Bill 89 parallels that jurisprudential trend by introducing a new category of protected services - those “ensuring the well-being of the population ”. These are defined as the services “minimally required to prevent the population’s social, economic or environmental security from being disproportionately affected, in particular that of persons in vulnerable situations”.10 This provision would apply to all strikes or lockouts, except those occurring in a government department or agency where employees are appointed under the Public Service Act11 or in an institution within the meaning of the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors.12 This notion is similar to the concept of “minimum services” recognized in international labour law, particularly by the International Labour Organization’s Committee on Freedom of Association. The Committee considers that minimum levels may be set for certain services that are not essential “in the strict sense of the term” when a strike has the potential to paralyze a critical sector or trigger a severe national crisis that would jeopardize the well-being of the population, or when such measures are necessary to ensure that the basic needs of the population are met.13 > It is certainly still too early to determine which sectors would fall under the new category in Quebec and be subject to the new interpretation criteria. However, while each case is different, sectors where international law provides for minimum service levels could qualify, as they have a direct impact on daily life. Such services include education during extended strikes, public transit, basic banking, energy infrastructure management, passenger and freight services, and solid waste collection.14 The Bill would allow the government to issue an order in council designating parties for whom the ALT can determine whether services must be maintained in the event of a dispute. It would then be up to the ALT to order the parties to maintain those services, but the parties themselves would first need to attempt negotiations around the services they deem necessary. If no agreement is reached, the ALT will make the final decision. In all cases, an assessment will be conducted to determine whether the level of service is adequate. Moreover, the ALT would be granted various investigative15 and remedial powers16 in the matter. The Bill also introduces various other provisions17 and prohibits changes to the working conditions of employees providing such services, unless the parties have reached an agreement.18 Furthermore, the Bill includes penal provisions and states that employers declaring a lockout in a public service organization are required to inform the other party and the Minister of Labour in writing at least seven clear working days19 in advance. Conclusion Bill 89 is still at the introduction stage, and its approval will depend on the upcoming parliamentary process. The Bill may still be amended before it becomes law. That said, the Bill has sparked strong reactions from trade unions, with some representatives saying they plan to challenge the new measures in court if they are adopted and enforced.20 We will be closely monitoring the Bill’s progress and potential impact on the legal framework governing labour relations in Quebec.   CQLR, c. C-27.   Bill 89, s. 5 amending the Labour Code by adding section 111.32.2. However, this would not apply to labour relations in the public and parapublic sectors. Bill 89, s. 5 amending the Labour Code by adding s. 111.32.3.   Bill 89, s. 5 amending the Labour Code by adding s. 111.32.4.   R.S.C. 1985, c. L-2. The existing provisions mainly apply to public services and comparable services, as well as to the public and parapublic sectors. Fernand Morin, Rapports collectifs de travail, 2nd ed., Montréal, Éditions Thémis, 1991, p. 697: [TRANSLATION] “This provision applies only to businesses designated by an order in council and only while collective bargaining is underway (s. 111.0.17 of the Labour Code).According to this section: (i) It is the Minister’s responsibility to assess whether an anticipated work stoppage poses a danger and to take initiative in bringing the matter before the government.”   National Assembly of Québec, Commission permanente du Travail, de la Main-d’œuvre et de la Sécurité du revenu (standing committee on labour, workforce and income security), 3rd Session, 32nd Legislature, June 10, 1982, “Étude du projet de loi no 72 - Loi modifiant le Code du travail, le Code de procédure civile et d’autres dispositions législatives” (consideration of Bill 72 – An Act to amend the Labour Code, the Code of Civil Procedure and other legislation), p. B-6440: [TRANSLATION] “For example, I was listening to the MNA for Sainte-Anne—I know other people share those same concerns—who was saying that we should introduce the concept of—this isn’t exactly how he put it, but I was going to say—economic or social turmoil.The idea is embedded in the legal framework governing public health and safety, but falls under the jurisdiction of the executive branch.It’s a key element.”    Réseau de transport de la Capitale et Syndicat des employés du transport public du Québec Métropolitain inc., 2023 QCTAT 2525. Bill 89, s. 4 amending the Labour Code by adding s. 111.23.3. CQLR, c. F-3.1.1. CQLR, c. R-8.2. International Labour Office, Freedom of association – Compilation of decisions of the Committee on Freedom of Association, 6th ed., Geneva, 2018, at paras. 830 to 866.  The Supreme Court has recognized the relevance of the comparison: Saskatchewan Federation of Labour c. Saskatchewan, [2015] 1 SCR 245, at para. 69. Jean Berner, Les services essentiels au Québec et la Charte canadienne des droits et libertés, Québec, Presse de l’Université Laval, 2018, p. 35. Bill 89, s. 4 amending the Labour Code by adding s. 111.22.13. Bill 89, s. 4 amending the Labour Code by adding s. 111.22.15. The powers in question are those provided for in sections 111.17 to 111.22.1 of the Labour Code. Bill 89, s. 4. Bill 89, s. 4 amending the Labour Code by adding s. 111.22.12. Bill 89, s. 1 amending s. 111.0.23 of the Labour Code. Radio-Canada, Québec solidaire soupçonne la CAQ de vouloir se venger du secteur public, February 19, 2025, https://ici.radio-canada.ca/nouvelle/2142088/greves-limites-projet-loi-quebec, accessed February 21, 2025

Employers are regularly faced with complex mental health situations, particularly when their employees are absent due to illness or injury, or when accommodation measures need to be considered. In such cases, they usually request supporting documentation specifying the diagnosis in question. Diagnosing a mental disorder used to be an act reserved exclusively for doctors,1 although the Code of ethics of psychologists does mention “psychological diagnosis.”2 The Act to amend the Professional Code for the modernization of the professional system and to broaden certain professional practices in the field of health and social services,3 also known as Bill 67, which received assent on November 7, recognizes that certain health professionals other than physicians are qualified to make mental health diagnoses. These legislative changes are in keeping with the goal of making professional care and services more accessible to the public, and are in line with the position the Collège des médecins du Québec has taken in recent years.4 The professionals involved and the new authority granted in terms of diagnosis5 Psychologists (including neuropsychologists): Mental disorders Neuropsychological disorders, if a training certificate has been issued to the professional Guidance counsellors: Mental disorders, if a training certificate has been issued to the professional Intellectual disability Speech therapists and audiologists: Language disorders and learning disorders related to language Sexologists: Sexual disorders, if a training certificate has been issued to the professional Nurses: Mental disorders, with the exception of intellectual disability, if the nurse has university training and clinical experience in psychiatric nursing It should be pointed out, however, that this legislative change is not intended to create a new activity reserved for these professionals. Rather, its aim is to recognize that some mental health assessments, and the clinical conclusions arising from them, are really diagnoses.6 Impact on employers When a diagnosis of a mental disorder is made, it is possible that the professional concerned, such as a psychologist or neuropsychologist, might recommend the appropriate treatment, including stopping or returning to work.7 These legislative changes8 could make it more complicated for employers and insurers to refuse to implement this recommendation solely because the healthcare professional is not a physician. We believe it is also possible that these changes will lead to new requests for reasonable accommodation with regard to several increasingly frequent mental issues (e.g. attention deficit disorder with or without hyperactivity, autism spectrum disorder, intellectual giftedness, major depressive disorder, etc.), without a physician necessarily being involved at the diagnosis stage. The expansion of professional practices to promote access to care and services for employees could therefore have the effect of increasing the number of requests submitted to employers in connection with mental disorders. It will be important to monitor how employers and others position themselves and adapt their policies in relation to diagnoses established by the professionals concerned. By way of illustration, it’s possible that some employers may decide to require that an employee with a mental health issue undergo more frequent medical examinations, insofar as circumstances allow. Entry into force The changes introduced by Bill 67 came into force on November 7, 2024.9 Professionals who already met the regulatory requirements on that date are deemed to be qualified to make diagnoses.10 Medical Act, CQLR, c. M-9, s. 31; Professional Code, CQLR, c. C-26, s. 31 to 34; Bernard Cliche, Éric Latulippe, François Bouchard, Paule Veilleux and Isabelle Royer, Le harcèlement et les lésions psychologiques, 2nd ed., Cowansville, Éditions Yvon Blais, 2012, p. 329 and 330: [translation:] “The diagnosis of a mental disorder is reserved exclusively to physicians.” See also the arbitration case law, including Gatineau (Ville de) et Association des pompiers et pompières de Gatineau, 2016 QCTA 236. Code of ethics of psychologists, CQLR, c. C-26, r. 212, s. 38. SQ, 2024, c. 31. Collège des médecins du Québec, Projet de loi no 67 et élargissement des pratiques : notre position (Bill 67 and the expansion of practices: our position), September 18, 2024 [online: Projet de loi no 67 et élargissement des pratiques : notre position | Collège des médecins du Québec]. Bill 67, s. 4 and 45. Remarks by the sponsor of Bill 67, Ms. Sonia Lebel, during the bill’s committee stage, October 10, 2024. In the case of psychologists, for example, section 37(e) of the Professional Code already stipulated that they could “determine, recommend and carry out interventions or treatments with a view to fostering the psychological health and restoring the mental health of a person”. Before Bill 67 came into force, an arbitration award established a link between a professional’s ability to make a diagnosis and their ability to recommend a work stoppage: Aliments Cargill ltée et T.U.A.C., section locale 500, D.T.E. 2010T-817 (Arbitration Tribunal), par. 98 to 103. Bill 67, s. 87. Bill 67, s. 85.

In a decision rendered on September 16, 2024,1 the Administrative Labour Tribunal (the “ALT”) found that a company (the “employer”) had violated the Charter of the French language2 (the “CFL”) by requiring knowledge of languages other than French as part of a hiring process. This is one of the first decisions ruling on the new complaint mechanisms introduced by Bill 96, An Act respecting French, the official and common language of Québec3 (“Bill 96”), aimed at amending the CFL.  The Legislative Changes Made in 2022 On May 24, 2022, the Quebec government passed Bill 96, which received royal assent on June 1, 2022. This law made significant amendments to the CFL and other laws. Even before the amendments introduced by Bill 96 were adopted, the CFL prohibited employers from requiring that a person have knowledge or a specific level of knowledge of a language other than French to keep or obtain a position, unless the nature of the duties required such knowledge. Bill 96 has clarified the scope of employer obligations in this respect. In particular, employers must have taken all reasonable means to avoid imposing such a requirement,4 and, if they do impose it, they must indicate the reasons justifying this requirement in their job postings.5 Bill 96 also made it possible for job applicants and employees to challenge employers’ requirements respecting knowledge of a language other than French. The CFL now stipulates that if an employer does not meet the “necessity” conditions described below, requiring knowledge of a language other than French will be deemed a prohibited practice. The notion of a complaint for “prohibited practice” already exists in the Act respecting labour standards,6 notably in section 122. It enables employees to file a complaint if they believe they have been subjected to sanctions, discriminatory measures or reprisals for exercising a right provided under this law. The amendments introduced by Bill 96 have thus broadened the concept of prohibited practice to also include the exercise of certain language rights. The CFL was further amended to allow employees to directly file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”)7 if they believe that an illegal requirement to know a language other than French is being imposed on them. These are the issues addressed by the ALT in this decision. The facts On March 3, 2023, the complainant, Byung Chan Kim, filed a complaint for prohibited practice under the CFL. He believed that he was not granted a position posted by the defendant, the employer, because it required knowledge of a language other than French as part of a hiring process. The complainant came across a job posting in the defendant’s procurement and logistics department, which it had published in January 2023. The posting appeared exclusively in Korean in an online newspaper aimed at the Korean community. The complainant submitted his application in February along with his resume, which was written in French only. A representative of the defendant requested the complainant to provide an English version of the document, which the complainant provided. The complainant then participated in an interview, during which the defendant’s representative asked the complainant to speak in English and Korean because he did not understand French. Since the complainant’s application was not selected, he filed a complaint for prohibited practice based on the provisions of the CFL. Presumption of Prohibited Practice Section 46 of the CFL prohibits an employer from requiring knowledge of a language other than French, except when such a requirement is necessary for the performance of duties. The provision reads, in part, as follows: 46. An employer is prohibited from requiring a person, in order for the person to be able to keep a position, or to obtain a position through, in particular, recruitment, hiring, transfer or promotion, to have knowledge or a specific level of knowledge of a language other than the official language, unless the nature of the duties requires such knowledge; even in the latter case, the employer shall first take all reasonable means to avoid imposing such a requirement. [...] The second paragraph of section 45 of the CFL equates the requirement for knowledge of a language other than French in the context of employment to a prohibited practice: 45. The fact that an employer requires a person to have knowledge or a specific level of knowledge of a language other than the official language to keep a position or to obtain a position, in particular through recruitment, hiring, transfer or promotion, is considered a prohibited practice under the first paragraph, unless the employer shows, in accordance with sections 46 and 46.1, that the performance of the duty requires such knowledge and that he first took all reasonable means to avoid imposing such a requirement. Based on these provisions, the ALT confirmed that a person in a hiring process, and therefore not bound to the employer by an employment agreement, bears the burden of demonstrating that the following conditions exist to benefit from a presumption of prohibited practice. They must:8 apply to a position in response to a job posting by the employer;9 demonstrate that the employer requires knowledge, or a specific level of knowledge, of a language other than French to access the position;10 and file a complaint within 45 days after the occurrence of the practice complained of.11 The ALT concluded that the complainant did indeed prove that all the conditions to apply the legal presumption of prohibited practice were met, such that it is presumed that the language requirements associated with the employer’s job posting violated the CFL. At that stage, it was a simple presumption. The presumption in favor of the complainant places the burden of proof on the employer, requiring it to demonstrate why the language requirement associated with the position was necessary, and that all reasonable means were taken to avoid imposing it. In order to prove the second criterion, the employer must show that it conducted an analysis of reasonable means before imposing the language requirement, and that it had indicated the reasons justifying this requirement in the job posting. Assessment of Language Requirements The defendant argued that the requirement for knowledge of English and Korean is necessary because the position includes tasks such as acquiring equipment on the international market, and because the defendant’s representative and employees communicate in Korean. In its analysis of these arguments, the ALT reaffirmed that the legislator has provided that any law must be interpreted in a manner that promotes the use and protection of the French language.12 Thus, the ALT emphasized that, to achieve the objectives of the law, a narrow interpretation must be made of the exceptions set out in the CFL, and that the criteria set out in sections 46 and 46.1 of the CFL are cumulative for each language requirement involving a language other than French. The ALT further noted that any decision to require knowledge of a language other than French to access a position must be based on a thorough and well-documented understanding of the actual constraints of the service in question.13 In this case, the ALT found that the defendant had failed to meet its burden of proof. First, the reasons justifying the English and Korean language requirements were not included in the job posting, an omission which in itself contravenes section 46 para. 2 of the CFL. Furthermore, the defendant failed to provide evidence regarding the nature of the positions already held within the company and the tasks associated with them, nor did it demonstrate the English language proficiency that was already required of employees. Lastly, according to the evidence, all employees in the company’s supply and logistics department spoke Korean. However, the defendant failed to prove that it had ascertained, prior to publishing its job posting, that the knowledge of English and Korean already required of other employees was insufficient. It also failed to demonstrate that it had limited the number of positions involving tasks requiring knowledge of either of these languages to the greatest extent possible. As a result, the ALT concluded that the defendant had not taken all reasonable measures to avoid imposing these requirements and, therefore, did not succeed in rebutting the presumption of prohibited practice. Limited Defence The defendant claimed that it was not because the complainant had insufficient knowledge of languages other than French that he was not hired, but rather because he lacked the skills required for the position. However, the ALT concluded that the CFL does not allow a defendant to raise an additional defence, such as having another just and sufficient cause that does not relate to the requirement for knowledge of a language other than French, to be used to avoid the application of the presumption. Since the defendant failed to prove that the performance of the task required knowledge of a language other than French, and because it failed to previously take all reasonable measures to avoid imposing such a requirement, the simple presumption became an absolute presumption, and the defendant cannot counter it with any other defence. Consequently, when a hiring process includes language requirements other than French and does not comply with the conditions of section 46.1 of the CFL, the process becomes irreparably tainted by an unlawful motive. The ALT thus confirmed that the only way to rebut the presumption of section 45, paragraph 2, and section 46 of the CFL, is to demonstrate that the performance of the duties requires knowledge of a language other than French, and that the employer has preemptively taken all reasonable means to avoid imposing such a requirement. The ALT therefore upheld the complainant’s complaint and reserved its powers to determine the appropriate remedies. Conclusion This decision marked a significant turning point in the application of the CFL. The ALT emphasized the importance of complying with the new provisions introduced by Bill 96, which aims to strengthen the language rights of Quebec workers. This decision serves as a reminder to employers of the obligation to clearly justify any language requirement and to demonstrate that they have taken all reasonable measures to avoid imposing conditions contrary to the CFL. Furthermore, this decision unequivocally rules out the possibility of defending against such a complaint with a defence based on the existence of another just and sufficient cause to justify the employer’s decision. It is crucial for businesses in Quebec to ensure compliance with these rules to prevent potential litigation, while respecting the fundamental right of workers to carry on their activities in French. Moreover, in light of this decision enforcing the prohibition on imposing language requirements under the amended CFL, it will also be pertinent to monitor how the ALT might eventually interpret the notion of “unreasonable reorganization” of a business. Indeed, the CFL stipulates that the first paragraph of section 46.1 must not be interpreted in a way that imposes on an employer an unreasonable reorganization of its business. Such an interpretation could provide employers with a way to avoid being bound by the conditions provided by the CFL. It will be important to closely follow any subsequent developments. Kim c. Ultium Cam, 2024 QCTAT 3295. CQLR, c. C-11. SQ  2022, c. 14.  S. 46 para. 1 of the CFL. S. 46 para. 2 of the CFL. CQLR, c. N-1.1. S. 47 of the CFL. S. 47.2 para. 2 of the CFL, which refers to the Labour Code, CQLR, c. C-27, s. 17 with the necessary modifications. S. 46 of the CFL. S. 46 of the CFL. S. 47 of the CFL. Interpretation Act, CQLR, c. I-16, s. 40.3. Gatineau (Ville de) c. Syndicat des cols blancs de Gatineau inc., 2016 QCCA 1596.

Quebec is currently facing a major shortage of physicians. To remedy the situation, several ministers in the CAQ government announced in early 2024 that significant changes would be implemented to reduce physicians’ administrative burden. In this context, on October 9, 2024, the National Assembly assented to Bill 68, An Act mainly to reduce the administrative burden of physicians.1 The provisions of the Act The new Act comprises 11 sections, many of which introduce amendments to the Act respecting labour standards2 (ALS) by restricting the right of employers to require documents attesting to the reasons for certain absences. Under the current legislation, an employer may be entitled to require a document from an employee who misses work owing to sickness in order to assess the reasons for the absence, its duration, or the employee’s ability to return to work. This is because, under the terms of a contract of employment,3every employer is entitled to expect their employee to fully perform the work agreed upon. Depending on the circumstances, the supporting document provided must in some instances indicate a specific medical diagnosis, an estimated duration of absence and other details relevant to handling the employee’s absence. In keeping with these principles, section 79.2 of the ALS provided that an employer informed of an absence owing to sickness, an organ or tissue donation, an accident, domestic violence, sexual violence or a criminal offence may, “[i]f it is warranted by the duration of the absence or its repetitive nature, for instance, [...] request that the employee furnish a document attesting to those reasons.” According to arbitral jurisprudence4 and that of the Administrative Labour Tribunal5, unwarranted refusal to provide such a document may constitute valid grounds for imposing an administrative or disciplinary measure, depending on the circumstances. That said, the new Act as adopted changes this balance. Indeed, a paragraph has been added to section 79.2 of the ALS specifying that “[...] no employer may request the document referred to in the first paragraph for the first three periods of absence not exceeding three consecutive days taken over a period of 12 months.” It will therefore be prohibited to require a supporting document, including a medical certificate, for the first three short-term absences (less than four days) occurring over the 12 preceding months. According to the comments of the Minister of Labour, such calculation of absences is to begin with the first absence during the year rather than as of January 1st of each year.6 The Act does not provide for an exception in cases where absences are excessive or otherwise questionable. Under which conditions will employers be entitled to require a medical certificate? Under the Act, employers retain the right to require a medical certificate where the absence is likely to last four consecutive days or more. What is more, the provision does not deny employers the right to investigate situations that appear questionable. The aforementioned prohibition will also apply to employers whose employees are governed by the Act respecting labour relations, vocational training and workforce management in the construction industry.7 Furthermore, the Act includes an amendment to the provisions relating to family or parental leave and absences. The third paragraph of section 79.7 of the ALS is amended so as to prevent employers from requiring a medical certificate to justify such absences. However, we believe this amendment in no way affects their right to require any other type of documentation, particularly as regards obligations relating to daycare services or educational institutions. Where an offence is committed, the penal provisions already included in sections 139 to 147 of the ALS apply. As these amendments are of public order and take precedence over any contract, policy or collective agreement, any measure imposed on an employee that would contravene any of these new obligations may be deemed invalid or result in a prohibited practice complaint. How will the Act affect insurers and employee benefit plan administrators? On another note, the Act mainly to reduce the administrative burden of physicians also introduces a new prohibition applicable to insurers and employee benefit plan administrators. They will no longer be entitled to require that a medical service, such as a consultation, be received in order to reimburse the cost of services or a technical aid, nor will they be entitled to require that a medical service be received at a predetermined frequency different from that considered appropriate by the attending physician for the purpose of maintaining the payment of disability benefits. Coming into force The amendments to the ALS will come into force as of January 1, 2025. The amendments concerning insurers and employee benefit plan administrators will apply subsequently at a date or dates to be set by the Government. S.Q., 2024, c. 29. CQLR, c. N-1.1. Civil Code of Québec, CQLR, c. CCQ-1991, art. 2085. See in particular the case law cited in Linda Bernier, Guy Blanchet and Éric Séguin, Les mesures disciplinaires et non disciplinaires dans les rapports collectifs du travail, 2nd ed. Cowansville, Éditions Yvon Blais, loose-leaf, updated to May 30, 2024, paras. 1.055 et seq. See in particular : Marchessault et CPE Les Petits Adultes, 2019 QCTAT 1632, paras. 37–38; Labourdette et Protecteur du citoyen, 2019 QCTAT 4831, para. 52. COMMITTEE ON LABOUR AND THE ECONOMY, Clause-by-clause consideration of Bill 68, An Act mainly to reduce the administrative burden of physicians, October 1, 2024. CQLR, c. R-20.