Gagné, Hamilton, Beaupré
Appeal from a judgment of the Superior Court allowing an application for judicial review of an arbitral award which upheld grievances and a complaint involving a dismissal pursuant to s. 32 of the Act respecting industrial accidents and occupational diseases (CQLR, c A-3.001) (ARIAOD) Allowed.
The arbitrator found that the employer’s decision to dismiss the complainant for a second time (after the first dismissal was successfully contested) due to functional limitations caused by an episode of psychological harassment was abusive and discriminatory. He therefore ordered the employer to restore the employment relationship and to comply with his duty to accomodate, the whole in a context where the harasser no longer worked for the employer. The reviewing judge applied the reasonableness standard and found that the arbitrator had exceeded his jurisidiction in going against the decision of the Commission de la santé et de la sécurité du travail (CSST), which had determined the complainant’s functional limitations and declared that he could not resume his employment or return to work for the employer.
The matter raises certain issues "related to the jurisdictional boundaries of between two or more administrative bodies", which are governed by the standard of correctness. Indeed, the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) has exclusive jurisdiction to examine and decide any question contemplated in the Act respecting industrial accidents and occupational diseases, unless a special provision gives the jurisdiction to another person or agency. That is the case in matters of discrimination or reprisals (s. 32) and the application of the provisions of a collective agreement on the right to return to work (s. 244) or when the provisions of a collective agreement claim to provide more favourably for a worker than does the Act (s. 4). The grievance arbitrator has jurisdiction over these matters.
Furthermore, the Supreme Court determined that the CSST and the Commission des lésions professionnelles had exclusive power to impose accomodation measures for an employment injury on an employer (Commission de la santé et de la sécurité du travail c. Caron (C.A., 2015-06-15), 2015 QCCA 1048, SOQUIJ AZ-51185251, 2015EXP-2001, 2015EXPT-1226, J.E. 2015-1108, D.T.E. 2015T-461). The exclusive nature of that power, however, is also subject to the exceptions provided in ss. 4 and 244 of the ARIAOD. When exercising jurisdiction in such matters, the grievance arbitrator in principle cannot contradict the determinations of the CNESST (or of the Administrative Labour Tribunal (ALT), including with respect to the existence or nature of an employment injury, functional limitations, suitable employment, etc. In the very particular circumstances of this case, not only did the arbitrator have jurisdiction, but his conclusions were consistent with those of the CNESST or the TAT, except with respect to the duty to accommodate imposed on the employer, which should have been subject to [translation] "the current or future decisions of the CNESST" since it is up to the CNESST to rule on the disappearance of the functional limitation (Syndicat du préhospitalier (FSSS-CSN) c. Corporation d'Urgences-santé (C.A., 2016-02-12), 2016 QCCA 266, SOQUIJ AZ-51254504, 2016EXP-747, 2016EXPT-427, J.E. 2015-1108, D.T.E. 2016T-160), in this case since the departure of the harrasser. This shortcoming is easily corrected, which the reviewing judge should have done instead of setting aside the award.
Text of the decision: http://citoyens.soquij.qc.ca