Update of Penal and Criminal Law in Occupational Health and Safety Matters

March 1, 2014

Download this publication

Every year, several judgments are rendered in penal law cases involving occupational health and safety issues. However, judgments in an occupational health and safety context resulting from the laying of criminal negligence charges are more rare. While the sections of the Criminal Code¹ which facilitate the filing of criminal negligence charges are now ten years old², criminal negligence convictions in Quebec based on breaches of section 217.1 of the Criminal Code can still be counted on the fingers of one hand.³

The most significant conviction in Canadian history is still very recent: we are referring of course to the conviction of Metron Construction Corporation ("Metron") by the Ontario Court of Appeal on September 4, 2013.⁴

In this article, we will summarize some of the applicable concepts and highlight a few noteworthy judgments rendered in 2013 in penal and criminal law pertaining to occupational health and safety matters.

SOME CONCEPTS APPLICABLE IN PENAL AND CRIMINAL OCCUPATIONAL HEALTH AND SAFETY CASES
Sections 236 and 237 of the Act Respecting Occupational Health and Safety⁵ ("AOHS") set out the main penal offences relating to occupational health and safety.

Section 236 AOHS provides that every person who contravenes the AOHS or its regulations or who refuses to conform to, or incites a person not to conform to, a decision or order rendered under that statute or its regulations, is guilty of an offence and liable to fines in amounts which, in 2014, range from:⁶

In the case of a natural person:
- For a first offence, between $634 and $1,584;
- For a second offence, between $1,584 and $3,168;
- For any subsequent offence, between $3,168 and $6,336.

In the case of a legal person:
- For a first offence, between $1,584 and $3,168;
- For a second offence, between $3,168 and $6,336;
- For any subsequent offence, between $6,336 and $12,671.

As for section 237 AOHS, it provides that every person who, by an act or omission, does anything that directly and seriously compromises the health, safety or physical well-being of a worker is guilty of an offence and liable to fines in amounts which, in 2014, range from:⁷

In the case of a natural person:
- For a first offence, between $1,584 and $3,168;
- For a second offence, between $3,168 and $6,336;
- For any subsequent offence, between $6,336 and $12,671.

In the case of a legal person:
- For a first offence, between $15,839 and $63,355;
- For a second offence, between $31,678 and $158,389;
- For any subsequent offence, between $63,355 and $316,777.

The fines provided for at sections 236 and 237 AOHS are reassessed on January 1^st of each year.⁸

In order to secure a conviction for any of the offences provided for in these sections, the Commission de la santé et de la sécurité du travail ("CSST") must prove each of the essential elements of the offence in question beyond a reasonable doubt. These are strict liability offences.⁹

With respect to the criminal law of occupational health and safety, section 217.1 of the Criminal Code imposes a duty on "[e]very one who undertakes, or has the authority, to direct how another person does work or performs a task [...] to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task." Where an employer breaches this duty, it may be found to have omitted to do something that it was its duty to do, within the meaning of section 219 of the Criminal Code, and may, therefore, be charged with criminal negligence. The penalties that can be imposed reflect the inherent seriousness of such an offence.¹⁰ In particular, an individual charged with criminal negligence causing death is liable to imprisonment for life.¹¹ In the case of an organization, there is no limit to the amount of the fine which can be imposed.¹²

NOTEWORTHY JUDGMENTS IN 2013
PENAL LAW
In Commission de la santé et de la sécurité du travail v. Dollarama, s.e.c.,¹³ the Court of Appeal had to determine whether a limited partnership convicted under section 236 AOHS was subject to the penalties applicable to legal persons referred to in that section, or to a different penalty. This question arose because a limited partnership is not "a legal person" under Quebec law.¹⁴ The Court held that section 236 AOHS is unambiguous and establishes a clear dichotomy between natural persons and legal persons; limited partnerships do not fall in either category. It upheld the judgment of the Superior Court,¹⁵ the latter having found that, despite the legal vacuum that existed in the AOHS regarding the penalty to be imposed on a limited partnership, Dollarama was not absolved of its wrongdoing insofar as the Code of Penal Procedure¹⁶ expressly provides for the penalty which is to be imposed in such cases (albeit a penalty that is less severe than those set out in the AOHS¹⁷).

On October 29, 2013, the Quebec Court of Appeal rendered another decision in Commission de la santé et de la sécurité du travail v. Coffrages CCC ltée.¹⁸ In that decision, the Court overturned the judgment of the Superior Court acquitting Coffrages CCC ltée of an offence under section 237 AOHS, and restored the judgment of the Court of Québec convicting the company of the offence.¹⁹ The Court of Québec ruled that, while the site was in compliance with the regulations, the conditions for performing certain tasks were unsafe and the equipment was inadequate. For example, the worker had received no training or advice on the method to follow and the premises were cramped and located near a ditch. The overall effect was that, in the circumstances, there was an "easily foreseeable" danger of serious injury , therefore rendering the materialization of the danger "nearly certain". Conversely, the Superior Court held that the employee's unforeseeable actions were the result of gross negligence "by a person acting with extreme recklessness", and found that the premises were safe. The Court of Appeal restored the Court of Québec's judgment and concluded that the employer was guilty of the offence.

CRIMINAL LAW
On September 4, 2013, the Ontario Court of Appeal sentenced Metron to a fine of $750,000 for criminal negligence causing death.20 This was an appeal of the trial judge’s decision sentencing Metron to pay a $200,000 fine after it had pleaded guilty to criminal negligence causing death. This criminal prosecution was instituted following the collapse of a swing stage located on the 14^th floor of a building on December 24, 2009, which, among other damage, caused the death of a supervisor and three employees. Since the Criminal Code applies across Canada, this decision is extremely relevant for Quebec employers.

The Ontario Court of Appeal found that the fine imposed at trial was manifestly unfit. According to the Court, the trial judge placed too much emphasis on existing case law which imposed fines in relation to offences under the occupational health and safety legislation. In so doing, he did not consider the increased level of culpability inherent in a criminal conviction. In addition, the inherent gravity of the offence of criminal negligence causing death must be considered. Since the section of the Criminal Code dealing with fines imposed on organizations sets no limit and does not require the court to consider either the accused company's ability to pay or its economic viability, these were not determining factors in setting the amount of the fine.

The Court added that a fine of $200,000 did not reflect the added degree of moral blameworthiness that comes with a conviction for criminal negligence causing death, the particularly serious circumstances of this case, or the serious consequences for the victims and their families. The supervisor's negligence, for whom Metron was criminally liable, was "extreme".

This judgment of the Ontario Court of Appeal is the first decision of an appeal court on the subject and is particularly enlightening on the issue of the criteria which should guide the courts in determining the penalty for an offence of criminal negligence occurring in the context of a workplace accident. This is also the largest fine ever imposed on a company convicted of criminal negligence causing death. In 2008, prior to this decision, the most costly conviction was $100,000.²¹

CONCLUSION
We consider the judgment of the Ontario Court of Appeal in the Metron case to be a key decision rendered in 2013. The increase of the fine, upon review, to an amount nearly three times higher than the one that was originally imposed on Metron at trial is part of a clear trend aimed at differentiating the various coercive agents of the state as well as at reducing tolerance and increasing severity when dealing with employers who break the law.
_________________________________________
¹ RSC 1985, c C-46.
² Bill C-45 (An Act to amend the Criminal Code (Criminal Liability of Organizations), assented to on November 7, 2003, 2nd sess., 37th Parl. (Can.) came into force on March 31, 2004.
³ There have been two cases: R. v. Transpavé, 2008 QCCQ 1598, in which the company was fined $110,000, and R. v. Scrocca, 2010 QCCQ 8218, in which the employer, a natural person, was given a conditional sentence of two years’ imprisonment less a day plus a victim fine surcharge of $100. Note that in the case of R. v. Gagné, 2010 QCCQ 12364, the accused, two natural persons, were acquitted.
⁴ R. v. Metron Construction Corporation, 2013 ONCA 541 (“Metron”).
⁵ CQLR, c S-2.1.
⁶ These amounts are the figures suggested by the CSST in its guide entitled Cadre d’émission des constats d’infraction, January 2014, online: http://www.csst.qc.ca/publications/200/Documents/DC200_1053web.pdf.
⁷ Id.
⁸ AOHS, section 237.1.
⁹ Strict liability offences relieve the CSST of the burden of proving the existence of the “intention” to commit the offence (“mens rea”). The accomplishment of the act targeted by the offence gives rise to a presumption that the offence was committed (R. v. Sault Ste-Marie, [1978] 2 S.C.R. 1299).
¹⁰ Note that the objective of the penalty, under regulatory penal law, is not the same as under criminal law. Under the regulatory penal law in occupational health and safety matters, [translation] “the primary purpose of the penalty is to ensure compliance with the law and the prevention of offences”; it should have a “dissuasive” effect (Commission de la santé et de la sécurité du travail v. 9189-5201 Québec inc. (Monsieur Filiatreault Couvreur), 2013 QCCQ 14262). In criminal law, the penalty is more punitive and condemnatory in nature (Metron, supra, note 4, paras. 75 to 80).
¹¹ Criminal Code, section 220(b).
¹² Id., section 735.
¹³ 2013 QCCA 336.
¹⁴ Civil Code of Québec, RLRQ c C-1991, article 2188.
¹⁵ 2011 QCCS 5630.
¹⁶ Chapter C-25.1.
¹⁷ Judgment of the Superior Court, supra, note 15, paras. 46 to 49.
¹⁸ 2013 QCCA 1875.
¹⁹ 2012 QCCS 5737.
²⁰ Metron, supra, note 4.
²¹ R. v. Transpavé inc., supra, note 3.

Back to the publications list

Stay tuned for the latest legal news. Subscribe to our newsletter.

Subscribe to publications

Publications that might interest you

October 29, 2024

Employers’ Right to Require Medical Certificates: New Restrictions as of January 1, 2025

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.

Read more
August 1, 2024

Major change to the Canada Labour Code with new anti-replacement-worker provisions

Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012, was passed on June 20, 2024, introducing anti-replacement-worker provisions to the Canada Labour Code. While anti-replacement-worker legislation has existed in Quebec since 1977, nothing of the sort existed for federal jurisdiction employers. Before Bill C-58, federal legislation only stipulated that an employer or a person acting on behalf of an employer could not use replacement workers “for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives.” Unions faced a heavy burden of proof to demonstrate that replacement workers were being used for this purpose. As a result, union activists have been pushing for decades for more protection during labour disputes. New anti-replacement-worker provisions Bill C-58 adds a new subsection to section 94 of the Canada Labour Code on unfair practices, which limits and regulates the use of replacement workers during strikes and lockouts. The new provisions no longer require unions to demonstrate the employer’s intention to undermine the union’s representational capacity and they prevent federal jurisdiction employers from using the services of any of the following persons to perform the duties of an employee who is in the bargaining unit on strike or locked out: Any employee hired after the day on which notice to bargain collectively was given. Any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if the person was hired after the day on which notice to bargain collectively was given. Any contractor, other than a dependent contractor, or any employee of another employer whose services were not being used on the day on which notice to bargain collectively was given. If, before the day on which notice to bargain collectively was given, an employer was using the services of a contractor or an employee of another employer and those services were the same as or substantially similar to the duties of an employee in the bargaining unit, they may continue to use those services during a labour dispute, so long as they do so in the same manner, to the same extent and in the same circumstances as they did before the notice was given. Any employee whose normal workplace is a workplace other than that at which the strike or lockout is taking place or who was transferred to the workplace at which the strike or lockout is taking place after the day on which notice to bargain collectively was given. Any volunteer, student or member of the public. Any employee who is in a bargaining unit on strike or locked out. However, the new provisions allow employers to use the services of such persons during a strike or lockout as long as the services are used solely to deal with a situation that presents or could reasonably be expected to present one of the following imminent or serious threats: A threat to the life, health or safety of any person. A threat of destruction of, or serious damage to, the employer’s property or premises. A threat of serious environmental damage affecting the employer’s property or premises. The use of the services must be necessary in order to deal with the situation because the employer is unable to use the services of the employees on strike or locked out. As in Quebec’s Labour Code, an employer may only rely on the services of a person referred to above for conservation purposes, and not for the purpose of continuing the supply of services or production of goods by the employer. Finally, the bill specifies that the employer must first offer these conservation duties to the employees who are on strike or locked out. The bill also includes provisions applicable to employers who contravene the anti-replacement-worker provisions. These offences can result in fines of up to $100,000 per day. The government may also ensure compliance with the new provisions by adopting regulations to establish an administrative framework with financial penalties. New provisions regarding the maintenance of activities during a strike or lockout In order to prevent imminent and serious threats to public health and safety, Bill C-58 provides that the union and employer must reach an agreement on the activities to be maintained in the event of a labour dispute. If no activities need to be maintained, the parties must still enter into an agreement to this effect. An employer and a union must enter into this agreement no later than 15 days after the day on which notice to bargain collectively was given to the Minister of Labour and the Canada Industrial Relations Board. If the parties do not reach an agreement, the matter will be brought before the Board at the request of one of the parties. The 72-hour strike or lockout notices referred to in section 87.2 of the Canada Labour Code may be given only once this agreement has been reached and a copy has been filed with the Minister and the Board, or if no agreement has been reached, if the Board has determined an application made by one of the parties. Coming into force Bill C-58 will come into force on June 20, 2025. Until then, the new anti-replacement-worker provisions will undoubtedly cause federal jurisdiction employers to seriously consider their bargaining power and level of preparedness for possible labour disputes. Our team is here to help you through this process.

Read more
July 23, 2024

Requirements to Prevent and Reduce the Risk of Forced Labour or Child Labour: What Businesses Need to Know to Comply

On May 11, 2023, the Fighting Against Forced Labour and Child Labour in Supply Chains Act, S.C. 2023, c. 9 (the “Act”) was passed. The purpose of this Act is to implement Canada’s international commitment to contribute to the fight against forced labour and child labour, and to require certain entities to report on the measures they have taken to reduce the use of forced labour and child labour. The Act came into force on January 1, 2024, and reporting entities and federal institutions were required to submit their first report under the Act by May 31, 2024. In addition, Public Safety Canada (the “Government”) released the Guidance for reporting entities. Scope of the Act The Act applies to government institutions and to any corporation, partnership, trust or other unincorporated organization that (i) is listed on a stock exchange in Canada or (ii) has a place of business in Canada, does business in Canada or has assets in Canada and that, based on its consolidated financial statements, meets at least two of the following conditions for at least one of its two most recent financial years: (a) it has at least $20 million in assets (b) it has generated at least $40 million in revenue (c) it employs an average of at least 250 employees (collectively, the “entities”) Or (iii) is prescribed by regulations. The obligation to report applies to any entity (a) producing, selling or distributing goods in Canada or elsewhere; (b) importing into Canada goods produced outside Canada; or (c) controlling an entity engaged in any of these activities. Entities are considered to be operating in Canada if they produce, sell or distribute goods in Canada. They may also be considered to be operating in Canada if they have employees, if they make deliveries, purchases or payments in Canada, or if they have bank accounts in Canada. It is important to note that doing business in Canada does not require having a place of business in Canada. Forced Labour vs. Child Labour For the purposes of this Act, child labour is defined as labour provided by minors that (i) is provided or offered to be provided in Canada under circumstances that are contrary to the laws applicable in Canada; (ii) is provided or offered to be provided under circumstances that are physically, socially or morally dangerous to them; (iii) interferes with their schooling; or (iv) constitutes the worst forms of child labour, as defined in article 3 of the Worst Forms of Child Labour Convention.1 Forced labour is labour provided by a person (i) in circumstances in which it would be reasonable to believe that their safety or that of a person known to them would be threatened if they failed to provide such labour; or (ii) in circumstances which constitute forced or compulsory labour, as defined in article 2 of the Forced Labour Convention.2 Entities With Reporting Obligations Any entity required to report annually to the Government under the Act must include in its report the steps taken during its previous financial year to prevent and reduce the risk of forced labour and child labour. In order to comply with the obligations imposed by the Act, the entity must also include in its report information on its structure, its activities relating to the production, sale, distribution or importation of goods, as well as the type of goods and place of operation, and the countries or regions involved in its supply chains. Lastly, the report must include a brief explanation of the entity’s due diligence policies and processes regarding forced labour and child labour, information on the training provided to employees, and the parts of its business that carry a risk of forced labour or child labour. Given that the steps taken to prevent and reduce forced labour and child labour can result in a loss of income for vulnerable families, the Act requires entities to identify the measures taken to mitigate such impact on these families. Publication of Reports Entities must not only comply with the format, approval and attestation requirements for their report before submitting it to the Government but also make it available to the public by publishing it on a prominent place on their website. They can submit their report in one of the two official languages, although the Government recommends that reports be published in both English and French. In addition, the Act requires entities incorporated under the Canada Business Corporations Act or any other federal law to provide a copy of the report to each shareholder at the same time as their annual financial statements. Offences and Fines Reporting entities that fail to submit their report or make it available to the public are liable to a fine of not more than $250,000 per offence.3 The senior executives, directors and employees of an entity are also liable to fines and criminal prosecution should the entity contravene the Act.4 Any offence committed by an entity may also entail reputational risk. Our Advice Introducing policies, procedures, audit tools and other rules—or improving existing ones—to prevent and reduce modern slavery is essential. Such policies and rules may include procedures for reporting and an investigation process to address concerns, as well as a whistleblower protection system (whistleblower policy or similar measures). Businesses should think about how they select suppliers and whether they should adopt rules for monitoring the activities of their suppliers and partners. They should also consider updating their agreements with existing suppliers or partners to ensure compliance with the requirements of the Act, in particular by including provisions prohibiting the use of forced labour or child labour in suppliers’ business activities. Other measures may include raising awareness and training staff, directors and officers on how to implement company policies and procedures aimed at identifying and preventing forced labour and child labour. Our team has developed tools to help reporting entities identify the parts of their business that carry a risk of forced labour or child labour. We will be monitoring upcoming government publications in response to the first reports that reporting entities submit and, if need be, we will release another article to clarify reporting obligations. For any questions or advice relating to your obligations under the Act, do not hesitate to contact our team. Section 1 of the Act; see also the Worst Forms of Child Labour Convention, adopted in Geneva on June 17, 1999, article 3: Link Section 1 of the Act; see also the Forced Labour Convention, adopted in Geneva on June 28, 1930, article 2: Link Section 19 of the Act. Section 20 of the Act.

Read more
July 18, 2024

Harassment and Violence in the Workplace: An Overview of Recent Legislative Changes Introduced by Bill 42

Introduction In 2020, faced with statistics showing that nearly one in two women and three in ten men believed they had suffered sexual harassment or assault in the workplace,1 the Minister of Labour expressed its intention to help prevent and address this issue. The government began by setting up a committee to examine cases of sexual harassment and assault (the “Committee”). Its mandate was to analyze how such cases are handled in workplaces across the province.2 The Committee made over 82 recommendations in its report titled Mettre fin au harcèlement sexuel dans le cadre du travail : Se donner les moyens d’agir [putting an end to sexual harassment in the workplace by developing the means to act], which was prepared in collaboration with law enforcement agencies and further to consultations with various stakeholders, including community groups, unions and employers , as well as groups of women workers. The government included a number of recommendations from the report into Bill 42.3 This Bill, which is aimed at preventing and fighting psychological harassment and sexual violence in the workplace, was assented to on March 27, 2024. It introduces major amendments to various labour laws, which are likely to change existing practices within organizations. The following is an overview of these amendments and their potential impact. A. Occupational health and safety The Act respecting occupational health and safety was first amended to introduce a definition of what constitutes“sexual violence,” whichcame into force on March 27, 2024, and reads as follows: Any form of violence targeting sexuality or any other misconduct, including unwanted gestures, practices, comments, behaviours or attitudes with sexual connotations, whether they occur once or repeatedly, including violence relating to sexual and gender diversity.4 This broad definition could very likely affect existing employer policies and give rise to a host of problems needing to be resolved by the courts to ensure proper application. Action programs and prevention programs [effective October 6, 2025]: When developing an action program (for businesses with 20 workers or less) or a prevention program (for businesses with 20 workers or more), employers will be required to identify and anticipate psychosocial risks and risks related to sexual violence that may affect workers in their establishments.5 B. Industrial accidents and occupational diseases New legal presumptions of employment injury [effective September 27, 2024]: The Bill introduces two new legal presumptions of employment injury to reduce the burden of proof for victims of sexual violence in the following situations: Where injuries and diseases are the result of sexual violence suffered by a worker and perpetrated by the worker’s employer, one of the employer’s executives in the case of a legal person or a worker whose services are used by such employer; and Where a disease occurs within three months after the worker has been the victim of sexual violence. The burden will then be on the employer contesting an injury of this nature to reverse the application of these presumptions. Handling employment injury claims will be even more difficult, as Bill 42 provides that employers will not have access to workers’ medical records prior to hearings before the Administrative Labour Tribunal. Employers prohibited from accessing medical records [effective September 27, 2024]: Bill 42 sets out stricter obligations for health professionals designated by employers. Only the health professional designated by an employer will have access to the medical record in the possession of the Commission des normes, de l’équité, de la santé et de la sécurité du travail concerning the worker’s employment injury.6 It will not be possible for the employer to obtain all information concerning a worker’s medical condition, because the health professional will be required to limit disclosure to only the information needed to provide the employer with a summary of the file and an opinion on how to handle the employment injury claim.7 The prohibition on access to medical records also carries important fines ranging from $1,000 to $5,000 for a natural person and from $2,000 to $10,0008 for a legal person. However, it does not preclude employers from obtaining medical records concerning the employment injury by way of an authorization or subpoena. Extension of time limit for filing a claim [effective September 27, 2024]: The new time limit for filing a claim for an injury or disease resulting from sexual violence is two years.9 In all other cases, the time limit for filing a claim is six months from the occurrence of the injury.10 Cost of benefits imputed to all employers [effective March 27, 2024]: As an exception to the principle that employers must cover the costs associated with employment injuries, where an employment injury is the result of sexual violence suffered by a worker, the Bill provides that the cost of benefits will automatically be imputed to the employers of all the units.11 However, we must bear in mind that the imputation of costs to all units will have repercussions as it will lead to an increase in the cost of compensation regime for all employers. C. Labour standards Bill 42 also introduces a number of amendments to the Act respecting labour standards, including the following. Adjustments to harassment prevention and complaint processing policies [effective September 27, 2024]: Such policies must now include: The methods and techniques used to identify, control and eliminate the risks of psychological harassment, including a section on behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual nature. The specific information and training programs on psychological harassment prevention that are offered to workers and the persons designated by the employer to handle complaints or reports. The recommendations on behaviour to adopt when participating in work-related social activities. The applicable procedures for making complaints or reports to an employer or providing an employer with information or documents; details about the person designated to handle complaints or reports; and information regarding the employer’s obligation to follow up. The measures to protect the persons concerned by a psychological harassment situation and those who cooperated in processing a complaint or report regarding such a situation. The process for managing psychological harassment situations, including the process applicable to inquiries conducted by employers. The measures to keep complaints, reports, information or documents received confidential and, for the documents made or obtained in the course of managing a psychological harassment situation, the measures necessary to retain them for at least two years.12 The policy must form an integral part of the prevention program or action program under the Act respecting occupational health and safety [as of the effective date to be set by the government, which will be no later than October 6, 2025]. Harassment by third-parties [effective September 27, 2024]: Employers are expressly obliged to prevent psychological harassment “from any person.” This includes any third parties they do business with, such as customers, subcontractors and suppliers.13 The passage of time does not clean the slate [effective March 27, 2024]: An amnesty clause contained in a collective agreement will have no effect on disciplinary measures resulting from behaviours relating to physical or psychological violence within the meaning of the law.14 This major amendment is aligned with developments in case law on applying amnesty clauses in psychological harassment situations. Confidentiality of the psychological harassment complaint resolution process [effective September 27, 2024]: Where the parties to a settlement of a psychological harassment complaint do not wish to undertake to keep the agreement confidential, they must expressly agree in writing to waive the confidentiality obligation in the agreement.15 Punitive damages even in cases involving employment injury [effective March 27, 2024]: Where a worker’s psychological harassment complaint is upheld and they have suffered an employment injury resulting from the psychological harassment, they may also be entitled to punitive damages.16 The Administrative Labour Tribunal was previously prohibited from ordering an employer to pay punitive damages to a worker having suffered an employment injury resulting from psychological harassment.17 Expanded prohibition against reprisals [effective March 27, 2024]: In addition to the cases already provided for in the ALS, an employer may not take reprisals against a worker on the ground that the worker has made a report involving psychological harassment or cooperated in the processing of such a report or a complaint.18 Pratical considerations Given the many amendments introduced by Bill 42, all employers should keep abreast of new developments and best practices in preventing and handling harassment and violence in the workplace. In the short term, we recommend that employers: Hire experts to review and update their prevention of harassment and violence in the workplace policies before September 27, 2024. Depending on each situation, retain the services of a health professional who will play a proactive role and liaise with the employer in the handling of an employment injury claim. Explicitly define the terms of the mandate given to such expert in order to pinpoint what information is required to handle the employment injury claim. Schedule training sessions for all staff, including managers and executives. These training sessions should cover not only the aforementioned amendments, but also the procedure for reporting a sexual harassment or violence situation, filing and handling a complaint and making sure the process remains confidential. Inform members of their organization of the new definition and the updated company policy and establish response guidelines for managers who will have to deal with the various situations that can arise. Designate a person who will be in charge of enforcing and applying the harassment prevention and complaint processing policies. Carefully and meticulously document all aspects of inquiries conducted further to sexual violence or sexual harassment situations. Enlist the help of specialists in the field to help them identify and analyze the psychosocial risks and risks related to sexual violence that may affect workers in their establishment. Lastly, as regards handling employment injury claims, despite the fact that employers will no longer have to cover associated costs all on their own, employers may still need to handle claims or contest them in some situations, and they will have the burden of reversing the application of the presumptions benefiting workers. Limited access to medical records means more grey areas and more complex claims management. Given these significant changes, we believe it will be all the more important for employers to turn to qualified experts. When they do so, they should carefully set out the mandate that they wish to entrust to the expert in question to make sure that the opinion they obtain is detailed enough to adequately manage the employment injury claim. The terms of the mandate will need be drafted such that the expert understands whether the information requested is relevant for the employer to properly handle the claim. Our team is available to help you assess the impact that these many changes may have on your business. Statistics Canada, “Gender Results Framework: A new data table on workplace harassment,” released on February 12, 2024, online: The Daily — Gender Results Framework: New and updated data tables (statcan.gc.ca). This initiative was prompted by recommendation 138 of the report titled Rebâtir la confiance : Rapport du comité d’experts sur l'accompagnement des victimes d’agressions sexuelles et de violence conjugale [rebuilding trust: report from the committee of experts on support for victims of sexual assault and domestic violence], released in 2020. An Act to prevent and fight psychological harassment and sexual violence in the workplace, Bill42 (assented to on March 21, 2024), 1st Sess., 43rd Legis. (Qc) (hereinafter “B. 42”). The Bill’s provisions will gradually align with other legislative changes introduced by other recent bills, such as An Act to modernize the occupational health and safety system[3] and An Act respecting the regulation of work by children. Section 33, B. 42; section 1, Act respecting occupational health and safety (“AOHS”). Sections 35 and 36, B. 42; sections 59 and 61.2, AOHS. Section 5, B. 42; section 38, Act respecting industrial accidents and occupational diseases (“AIAOD”). Section 7, B. 42; section 39, AIAOD. Section 16, B. 42; section 458.1, AIAOD. Section 16, B. 42; section 271 and 272, AIAOD. Section 10, B. 42; section 271, AIAOD. Section 12, B. 42; section 327, AIAOD. Section 18, B. 42; section 81.19 Act respecting labour standards (“ALS”). Section 18, B. 42; section 81.19, ALS. Section 20, B. 42; section 97.1, ALS. Section 25, B. 42; section 123.17, ALS. Section 24, B. 42; section 123.15(4.1), ALS. s. 123.15(4) and 123.16, ALS. Section 21, B. 42; section 122(2.1), ALS.

Read more