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Summary

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Employment law – Industrial accidents – Duty to accommodate – Whether Commission de la santé et de la sécurité du travail (“CSST”) and Commission des lésions professionnelles (“CLP”) have jurisdiction to inquire into, for former case, and to decide and remedy, for latter, employer’s violation of worker’s right to equality under Charter of human rights and freedoms (“Charter”) – If so, whether employer’s duty to accommodate under Charter is reconcilable or consistent with provisions of Act respecting industrial accidents and occupational diseases (“A.I.A.O.D. ”) and, if yes, whether remedy provided under Charter calls into question historic compromise on employment injury compensation – Whether notice to Attorney General under article 95 of Code of Civil Procedure is necessary to invalidate provisions of A.I.A.O.D. – Charter of human rights and freedoms, CQLR, c. C-12 – Act respecting industrial accidents and occupational diseases, CQLR, c. A-3.001, s. 240.

On October 20, 2004, the respondent, Alain Caron, developed a case of epicondylitis in the course of his work as an instructor at the Centre Miriam (the “employer”). He was therefore given a temporary reassignment which the employer terminated three years later. The respondent has not returned to work at the Centre Miriam since then. A year after the respondent suffered his employment injury, the CSST declared that this injury had consolidated with permanent impairment and functional disabilities, and the CSST then began a rehabilitation process to assess whether the respondent could continue working for his employer. It eventually declared that the respondent was fit to return to the position he had held before his injury, but the employer successfully challenged that decision before the CLP.

The CSST, having been informed by the employer that it had no suitable employment to offer the respondent, then decided that the respondent’s rehabilitation process would continue and that his occupational opportunities would be re-evaluated on the basis that the employer had no suitable employment to offer him. The respondent’s union asked the CSST to reconsider that decision, arguing that the functional limitations resulting from the employment injury at issue made the respondent a person with a handicap within the meaning of section 10 of the Charter, that he could not be discriminated against because of this handicap and that, in looking for suitable employment, the employer had to make every effort to facilitate his return to work without, however, imposing undue hardship on him. The CSST concluded that the principle of reasonable accommodation could not be applied to disputes under the A.I.A.O.D. because the provisions of that statute are accommodation measures specific to employment injuries. The respondent challenged the CSST’s decision before the CLP, which confirmed the CSST’s decision and therefore dismissed the respondent’s application to subject the employer to a duty of accommodation under the Charter.

Lower Court Rulings