Verifying impediments

March 31, 2015

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Children are precious, and their health, safety and well-being are at the very heart of childcare providers’ responsibilities.

Several actors work with or alongside children on a daily or occasional basis in order to provide them care and education. In selecting people who work with children, providers collect and use a great deal of information about them, including their studies, experience, qualifications and abilities. Detailed criminal record checks are generally performed as well.

THE LEGAL OBLIGATIONS

To ensure that people who work with young children or are regularly in contact with them do not have a problematic past (including a criminal record) connected with their duties, the legislator has laid out the obligations and powers of childcare providers. For example, the Educational Childcare Act¹, (the Act) and the Educational Childcare Regulation² (the Regulation) contain provisions specifically dealing with verifications of impediments. As a result, the educational childcare system has the benefit of provisions which enable it to request relevant information lawfully, even if it constitutes personal information. Parameters governing these verifications have also been enacted.

The Regulation begins by providing that an applicant for a childcare or day care centre permit, or a person applying for recognition as a home childcare provider, must submit an application, and include a consent to a verification of the information necessary to establish whether an impediment exists. The applicant must also provide an attestation establishing that no impediment exists, or an attestation of information that may establish an impediment, as the case may be, for himself and each director or shareholder of the business.³

The concept of “impediment” is defined as “grounds for permit refusal set out in paragraphs 2 and 3 of section 26 and in the second paragraph of section 27 of the Act”.⁴

Those provisions are worded as follows:

26. The Minister may refuse to issue a permit if:

[…]

(2) the applicant or a director or a shareholder of the applicant exhibits or has exhibited behaviour that could reasonably pose a threat for the physical or emotional safety of the children to whom the applicant proposes to provide childcare;

(3) the applicant or a director or a shareholder of the applicant is charged with or has been convicted of an indictable or criminal offence related to the abilities and conduct required to operate a childcare centre or a day care centre;

[…]

27. Police forces in Québec are required to communicate any information required by regulation that is needed to verify the existence of an impediment under paragraph 2 or 3 of section 26.

The investigation to that end must be concerned with any sexual misconduct, failure to provide necessities of life, criminal operation of a motor vehicle, violent behaviour, criminal negligence, fraud, theft, arson and drug or narcotic-related offence.

[…]

In addition to the above, and subject to certain limitations, an applicant or permit holder must also ensure that “no person of full age working in the applicant’s or holder’s facility during the hours when childcare services are provided [...] has an impediment related to the abilities and conduct required to hold a position in a childcare centre or a day care centre [...]”⁵ The same rule, with the necessary modifications, applies to the home childcare coordinating office staff members “assigned to manage the office, to recognize or to monitor or provide technical and pedagogical support to the home childcare providers the office has recognized.”⁶ As for home childcare providers, they must meet requirements regarding the persons who assist them, and regarding any person of full age who lives in the residence where the care is provided.⁷

If the applicant or permit holder fails to show that no impediment exists, the Minister may refuse to issue a permit, or may suspend it, revoke it or refuse to renew it.⁸ The coordinating office may do the same in relation to the recognition of a home childcare provider.⁹

Accordingly, to determine whether an impediment exists, personal information must be collected, used and disclosed by various persons. Quite apart from the obligations set out in the Act and the Regulation, those persons must ensure that they comply with all the rules contained in legislation governing the protection of personal information, which we will not be addressing in this newsletter.

ASSESSING THE IMPEDIMENTS

Not all socially unacceptable behaviour reasonably poses a threat to the physical or emotional safety of children receiving childcare. Similarly, indictable and other criminal offences are not necessarily connected to the abilities and conduct required to run a childcare or day care centre. And it is only in such cases that the behaviour or past history can be a basis for refusing to issue a permit or recognition or for suspending, revoking or refusing to renew it.

Unfortunately, the jurisprudence on this issue in the context of educational childcare is rather limited. However, we believe that decisions which deal more generally with criminal records in the employment context can serve as guidance. For example, in order to determine whether there is a connection between a person’s criminal record and the position, the courts agree that a concrete and detailed analysis of the situation must be carried out, and that one must avoid limiting the analysis to the general nature of the offence. From this perspective, and based on the circumstances, the following elements should be among those considered:

the nature of the duties, having regard to the context in which the business operates and the services it provides;
the characteristics specific to the clientele;
the impact that the offence could have on the clientele, the reputation of the business or establishment, and the quality of the services provided; and
the risk of reoffending.¹⁰

In our opinion, drawing from the general principles applicable to employment, the above factors should also be considered in determining whether an indictable offence or criminal offence is related to the abilities and conduct required to operate a childcare or day care centre. With the necessary adjustments, these principles can also serve as guidance in assessing behaviour to determine whether one could reasonably pose a threat for the physical or emotional safety of the children. Other criteria, such as the nature of the offence, the date of its commission and the sentence imposed, if any, should be taken into account as well.¹¹

The people responsible for considering the issue of impediments must always avoid automatic decisions, and must examine the characteristics and implications of each case in an informed manner, weighing the information collected in relation to the person’s role in delivering the care. In doing so, they can refer to La vérification de l’absence d’empêchement dans les services de garde éducatifs,¹² a 2004 publication of the Ministère de l’Emploi, de la Solidarité sociale et de la Famille. Although the document was written before the Act came into force, and although it cannot replace the applicable legislation and is not a formal reference source, it can help inform decision-makers’ thinking.

In a recent decision¹³ about the dismissal of a childcare centre employee whose “attestation of information that may establish an impediment” mentioned the existence of [translation] “behaviour that might pose a risk” to children’s safety, the arbitral tribunal recalled certain principles and obligations applicable to the assessment of impediments:

[TRANSLATION]

[47] […] [The board of directors] has a duty to treat the person fairly, and must therefore demand the matter be the subject of an internal investigation whose findings are submitted to her in writing. In that investigation, the person must be given the opportunity to provide her version of the events. The childcare centre’s management can make a recommendation to the board, but the board is not required to follow it. It might decide to consult a lawyer to ensure it understands the legal aspect of the matter. It might decide to hear the person before making a decision.

[…]

[54] The childcare centre’s board of directors should not have contented itself with a simple oral statement from the centre’s director, and then wrongly determined that it had no choice but to dismiss [the worker] in order to comply with a directive of the Ministère de la Famille, the nature of which was not specified […].

[55] If it had acquainted itself with chapters 6 and 8 of the document entitled La vérification de l’absence d’empêchement dans les services de garde éducatifs, the board would undoubtedly had found criteria that it should have taken into account, such as aggravating factors, or, on the contrary, mitigating factors. In determining whether the conduct complained of constituted a genuine risk to the children’s safety, the board should have verified whether the incident was isolated or whether there was a re-offence, and should have taken the time that had elapsed since the incident into account, considered the quality of the employee’s work since she began with the centre, ascertained how cooperative she was with the investigation, etc. Lastly, it could have used the analytical table in the document, drawn on the table as inspiration for its own set of criteria to be used in weighing the pros and cons in order to make a fair, informed and reasoned decision.

[56] A childcare centre’s board of directors is made up of volunteers. It depends on the centre’s administration for its information. If it is not adequately informed, it is difficult for it to fulfill its role fully. The remarks in the preceding paragraph therefore apply to the centre’s management as well […].

[…]

[58] In order to be fair, the procedure that the board must follow in such circumstances would best be inspired by the [TRANSLATION] “fairness principles” set out in the Ministère’s 2004 document: transparency; the right to make representations; impartiality and objectivity; confidentiality; diligence and caution; and the duty to manage responsibly and obtain adequate information.

[59] The board has a duty to assess all aspects of the situation and determine, based on a fair procedure, whether the behaviour [the worker] is alleged to have committed constitutes a genuine risk to the safety of the children who frequent the childcare centre. It must therefore do its homework.

[Footnotes omitted.]

In light of these remarks from a case in which a person’s behaviour was assessed, but also in light of the principles discussed further above, it bears repeating that those who are responsible for ensuring that individuals who work alongside children in day care centres and childcare centres do not have an impediment must carry out that responsibility by taking the necessary time and consulting the resources necessary to make an informed decision, not one based on unjustified prejudice or social stigma stemming from past conduct or a past conviction.

Unless each case is evaluated seriously, decision-makers might find their decisions challenged. They might also be the subject of legal proceedings, which could, among other things, reverse their decision, reinstate the employee, or award financial compensation. In our view, if the investigation is handled particularly badly, the decision-makers might, subject to certain legal protections, be found personally liable.

_________________________________________
¹ CQLR, c. S-4.1.1.
² CQLR, c. S-4.1.1, r. 2.
³ Subsections 10(7) and 60(13) of the Regulation.
⁴ Section 1 of the Regulation, “impediment”.
⁵ Section 4, para. 1 of the Regulation.
⁶ Section 4, para. 2 of the Regulation.
⁷ Subsection 60(13) of the Regulation. In addition, s. 6 of the Regulation lists the cases in which a permit holder or home childcare provider must ensure that a new consent to investigation and a new attestation are provided.
⁸ Sections 26 and 28 of the Act.
⁹ Subsections 60(13) and 75(4) of the Regulation.
¹⁰ In this regard, see, among other things, Syndicat québécois des employées et employés de service, section locale 298 et Oasis St-Damien inc., 2012 CanLII 99864 (QC SAT) at paras. 104 to 108.
¹¹ See for example M.F. c. Centre de la petite enfance A, 2012 QCTAQ 09495.
¹² Ministère de l’Emploi, de la Solidarité sociale et de la Famille, La vérification de l’absence d’empêchement dans les services de garde éducatifs by Éric Dufresne (Québec: Ministère de l’Emploi, de la Solidarité sociale et de la Famille, 2004).
¹³ Syndicat des travailleuses et travailleurs de la petite enfance de la Montérégie c. Centre de la petite enfance Vos tout-petits, 2014 CanLII 47169 (QC SAT).

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Myriam Lavallée
Partner, Lawyer

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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. 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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. 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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.

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