Moore, Cournoyer, Bachand

Appeal from a judgment of the Superior Court dismissing an application for judicial review of a decision of the Administrative Labour Tribunal (ALT). Allowed.

The Commission des normes, de l'équité, de la santé et de la sécurité du travail dismissed the request for protective re-assignment under section 32 of the Act respecting occupational health and safety (CQLR, c. S-2.1) (AOHS) of the appellant, a paramedic-ambulance technician, on the grounds that the condition of his health showed no signs of deterioration. The ALT dismissed the appellant’s contestation. In its decision, the ALT did not consider the criterion of the deterioration of health, but only the two other conditions for the application of section 32 AOHS. In this regard, the ALT found that the COVID-19 virus was not a contaminant within the meaning of section 1 AOHS and that there was no danger to the appellant’s health. The Superior Court found that the ALT’s conclusions were reasonable.

The trial judge erred in the application of the standard of review. The decision rendered by the ALT was unreasonable. It made errors that undermine the confidence in its analysis. With respect to the textual interpretation, the ALT’s main error, from which others flow, is that it limited its reasoning to the addition by the legislature in 2015 of the requirement that to be considered a contaminant, the matter must have been “generated by equipment, a machine, a process, a product, a substance or a dangerous substance” (para. 24). While this aspect of the analysis regarding the legislative history is relevant, the ALT could not limit itself to it; it had to search for its meaning and context. This was all the more important given that the 2015 reform did not concern section 32 AOHS or the notion of “contaminant”. Without seeking the intention behind the Act to enhance the communication of hazard-related information concerning products present in the workplace and to amend the Act respecting occupational health and safety (S.Q. 2015, c. 13), the ALT could not find that it had the effect of indirectly amending section 32 AOHS by removing viruses such as COVID-19 from the scope of its application. In addition, the ALT’s analysis failed to consider the purpose of the Act respecting occupational health and safety, in whole or with respect to protective re-assignment under section 32. It is well established in the case law of the Court of Appeal and of the Supreme Court of Canada that the AOHS must be given a large and liberal interpretation to ensure workers’ financial security and avoid their having to choose between their health and their work. The ALT had to consider the objective of avoiding the imposition of such a choice on workers before accepting a restrictive interpretation of the regime.

Several assessments attest to the existence, at a given time, of a danger to the appellant’s health within the meaning of section 32 AOHS. Either the ALT erred in law by asking whether a risk existed in March 2020 in light of the information available when it rendered its decision, which was not the question it should have asked, or it “fundamentally misapprehended or failed to account for the evidence before it” (Canada (Minister of Citizenship and Immigration) v. Vavilov (S.C. Can., 2019-12-19), 2019 SCC 65, SOQUIJ AZ-51654335, 2020EXP-27, [2019] 4 S.C.R. 653, at para. 126) in assessing the evidence available at the time of the re-assignment. While it is difficult to determine which of these two hypotheses best represents the basis of the ALT’s decision, the fact remains that in either case, the resulting decision is unreasonable. It will be up to the ALT to determine at what moment it was possible to believe that the appellant could resume his duties without danger.

The ALT refused to rule on the issue of the deterioration of the condition of the appellant’s health as it was not necessary to do so in light of the conclusions it reached with respect to the other criteria. This choice cannot be characterized as unreasonable in the circumstances of this case.

Text of the decision: http://citoyens.soquij.qc.ca