Court of Appeal of Quebec

Costco Wholesale Canada Ltd. c. Roadnight


Bich, Sansfaçon, Fournier

Appeal from a judgment of the Superior Court granting in part an originating application for damages. Allowed.

The employee was absent owing to illness (depression) for two years further to events during which her superior allegedly made denigrating and depracating remarks in her regard. At the end of this period, the group insurer’s psychiatrist deemed her to be able to work. Following discussions and meetings with the employer, the employee concluded that her superior was not willing to admit his wrongdoing and that the employer did not intend to reinstate her. Considering herself to have been constructively dismissed, the employee instituted proceedings for damages. The trial judge rejected the defence based on the Superior Court’s lack of subject-matter jurisdiction. He found that the employee had been constructively dismissed without good and sufficient cause and ordered the employer and the superior to pay damages.

The subject matter of the action, which clearly falls within the exclusive jurisdiction described in section 349 of the Act respecting industrial accidents and occupational diseases (CQLR, c. A-3.001) (ARIAOD), cannot fall under the jurisdiction of the Superior Court and is incompatible with sections 438 and 442 of the ARIAOD (immunity from proceedings). The Act is of public order and provide a compulsory  recourse.  It applies to every worker who is the victim of an industrial accident or an occupational disease. It contains a bundle of rights and mechanisms to ensure compensation for employment injuries and the return to work. Jurisdiction to decide any matter related to the Act is conferred exclusively on the Commission des normes, de l’équité, de la santé et de la sécurité du travail. Immunity from proceedings applies as soon as the worker’s situation is potentially covered by the Act, including in cases where the worker does not resort to the regime established by it. The sole reason for the employee’s proceeding is an incident that occurred at work that gave rise to a disability falling within the scope of the Act. Even if we were to accept that the proceeding is related solely to her return to work, that subject, when in the context of an employment injury, is covered by the Act (s. 236). The proceeding should have been dismissed.

The trial judge erred in finding that there had been a constructive dismissal rather than a resignation. Indeed, the documentary and testimonial evidence does not reveal the tactics and subterfuges for which the judge faults the appellants, their bad faith, or their intention to impose hostile working conditions on the employee. The employee, who was dissatisfied with the employer’s attitude and her superior’s refusal to apologize to her, ended the discussions and resigned. The circumstances do not support the conclusion that this resignation resulted, directly or indirectly, from the actions of the employer.

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