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In December 2018, the Supreme Court of Canada [“SCC” or the “Court”] will hear a trio of appeals that will revisit the current standard of judicial review for administrative tribunal decisions (Bell Canada, et al. v Attorney General of Canada, docket 37896;?Minister of Citizenship and Immigration v Alexander Vavilov, docket 37748; and National Football League, et al. v Attorney General of Canada, docket 37897). At this time, when a court reviews the decision of an administrative decision-maker, the court can apply a standard of reasonableness or a standard of correctness in accordance with the approach set out in Dunsmuir v New Brunswick,?2008 SCC 9. How a court goes about choosing whether to apply one standard or the other, however, is neither straightforward nor consistent, and this issue is part of the question the Court must resolve in the trio of appeals.
In Quebec (Commission des norms, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3 [Caron], the lower courts differed on whether to apply the reasonableness or correctness standard in reviewing the decisions of the two administrative tribunals governing the workplace compensation scheme in Quebec. At the SCC, the justices were similarly divided: the majority applied the reasonableness standard while the dissent applied correctness. Whether unreasonable or incorrect, however, the outcome was unchanged. All courts ruled to remit the matter to the administrative decision maker. The diverging reasons in Caron?– and the compelling nature of each set – reveal how the standards of review need to be revisited and clarified.
On October 20, 2004, Alain Caron was injured during the course of his employment at Centre Miriam where he worked as a special educator for people with intellectual disabilities. The injury occurred when Mr. Caron hit his left elbow on a door frame at the facility, which resulted in him developing lateral epicondylitis (tennis elbow). One day after the injury, Centre Miriam assigned him to a different role as temporary team leader of the night shift. In this role, Mr. Caron oversaw the Centre’s transfer of patients with intellectual or developmental disabilities from hospital to residences catered to their needs. The temporary assignment ended when the transfer of patients concluded in 2007, at which time Centre Miriam terminated Mr. Caron. The Centre claimed that his disability prevented Mr. Caron from returning to his pre-injury position and they could not provide a suitable alternative position for him. Mr. Caron brought forward a complaint, arguing that the Centre Miriam should have fulfilled its duty to accommodate under the Quebec Charter of human rights and freedoms, CQLR, c. C-12 [Quebec Charter].
In Quebec, the Act Respecting Industrial Accidents and Occupational Diseases, CQLR, c. A-3.001 (hereafter “the Act”) governs the workplace compensation scheme. At the time of Mr. Caron’s injury and subsequent termination, the Commission de la santéet de la sécuritédu travail (Commission of Occupational Health and Safety or CSST) had exclusive jurisdiction to hear disputes that arose under the Act. If the applicant was unsatisfied with the CSST’s decision, he or she could first request an internal review, and then appeal the decision to the Commission des lésions professionnelles (Commission of Occupational Injuries or CLP). The CLP can overturn the decision of the CSST on a question of law or fact. Mr. Caron’s union brought forward a grievance on his behalf first to the CSST, which found that there was indeed no suitable employment for Mr. Caron at the Centre Miriam. Mr. Caron disputed this finding, arguing that “his rehabilitation process with Centre Miriam should continue in order to ensure implementation of the protections against discrimination in the Quebec Charter, including the employer’s duty to accommodate” (Caron, para 10). This duty would require Centre Miriam to attempt to find suitable employment for the employee up to the point of undue hardship. The CSST rejected this argument. It held that the duty to accommodate found in the Quebec Charter?is not applicable to matters brought under the Act?because the provisions in the Act relating to ensuring positions for injured workers are exhaustive. Therefore, the Quebec Charter?provisions would be superfluous.
After the internal review confirmed the CSST’s decision, Mr. Caron brought his matter to the CLP, which also dismissed the appeal. The CLP held that the Act?outlined the extent of the employer’s duty to accommodate, and that the additional accommodations Mr. Caron was seeking under the Quebec Charter?were not duties that could be required of the employer. Additionally, the CLP held that Mr. Caron’s right to return to work had expired, leaving the whole appeal moot (Caron, para 12). The Quebec Superior Court conducted a judicial review. The Superior Court conducted a reasonableness review, found the CLP’s decision unreasonable, and held that the case should be reconsidered in light of the employer’s duty to accommodate, as set out in the Quebec Charter (Caron c Commission des lésions professionnelles, 2014 QCCS 2580). The Centre Miriam appealed this review and the Quebec Court of Appeal dismissed the appeal, but it did so by conducting a correctness review and finding that the CLP was incorrect in holding that applying the Quebec Charter was beyond its jurisdiction (Commission de la santé et de la sécurité du travail c Caron,?2015 QCCA 1048).
The Majority for Reasonableness
Early in her ruling for the majority, Justice Abella identified the matter as entering “classic reasonableness territory” (Caron, para 4). She concluded that the decision of the CLP was unreasonable because it failed to take the employer’s duty to accommodate into account when assessing Mr. Caron’s dismissal. To show why it was unreasonable, Justice Abella delved in to the rationale behind workers’ compensation legislation. Since an injured worker cannot, according to the Act, bring forward a civil claim for full compensation of a workplace injury, his or her only recourse lies within the legislation. Within this legislative scheme, there is a trade-off: the worker sacrifices the possibility of full compensation, but does not have to prove the employer’s fault. The employer accepts fault for injuries incurred in the workplace, but does not have to provide full compensation.
For the majority, the main question on appeal was whether the CLP should have interpreted its home statute, the Act, in accordance with the Quebec Charter. Doing so would have imposed a duty to accommodate on Centre Miriam, and whether or not the employer satisfied this duty would have to be revisited by the tribunal. Justice Abella acknowledged that “the Act?sets up a comprehensive scheme for the treatment of injured workers but does not expressly?impose a duty to accommodate them” (Caron, para 20). What the Act?does do is prohibit the discrimination of workers on account of any injury suffered during the course of employment. This provision, according to Justice Abella, indicates that the statutory scheme “already clearly anticipates that reasonable steps will be taken to assist the disabled worker in being able to work if possible” (Caron, para 37). It is not such a stretch, then, to read the duty to accommodate into the Act.
And yet identifying this anticipation of the duty to accommodate in the Act?was ultimately a moot point for the majority. Justice Abella noted that the Court had already established in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Communaute urbaine de Montreal 2004 SCC 30 [Communauté?urbaine de Montréal] that Quebec legislation should be read in accordance with the principles set out in the Quebec Charter?(Caron, para 32). (This decision anticipated the Court’s ruling in Doré v Barreau du Québec, 2012 SCC 12, which held that when reviewing administrative decisions that impact Charter rights, a reasonableness standard applies. When faced with a decision impacting Charter rights, administrative decision-makers should balance their statutory objective with the Charter value at stake. Per?Doré, an administrative decision is reasonable if it minimally impairs that?Charter?value.) In the eyes of the majority in Caron, the ruling in?Communauté urbaine de Montréal?settled the matter and affirmed the Quebec Court of Appeal’s ruling: The Act?should be read with the Quebec Charter?in mind, which means Centre Miriam has a duty to accommodate. Reading in this duty is not an issue since the two pieces of legislation are not in conflict, the Act?anticipating what the Charter?imposes. Justice Abella stated that the whole structure set out in the Act reflects a duty to reasonably accommodate so “that an employee who is able to work can do so” (Caron, para 45).
In their analyses of Mr. Caron’s matter, both the CLP and the CSST did not consider reasonable accommodation, and therefore no factual inquiry was made into whether Centre Miriam could have found Mr. Caron suitable employment in accordance with its duty to accommodate. Given this unreasonable failure to take into account the Quebec Charter, the majority held that Mr. Caron should be able to have his matter heard again with the duty to accommodate incorporated into the tribunal’s approach.
Correctness and the Concurring Reasons
While Justices Rowe and C?té agreed with the majority’s decision to remit the matter to the CLP to determine whether or not Centre Miriam discharged its duty to accommodate, they disagreed with how the majority arrived at this conclusion. First, Justice Rowe wrote that the majority misconstrues the approach to statutory interpretation outlined in Communauté?urbaine de Montréal?as giving rise to shoehorning of the Charter?into the Act. In Justice Rowe’s view, the latter should actually only “draw” from the former (Caron, para 60). Justice Rowe disagreed with how the majority argues that the Act?can be read as though the Charter?provisions were also present. This, he wrote, extends the scope of the Act, and such an interpretation violates section 51 of the Quebec Charter?by interfering with legislative intent for the Act. What the Court can?do is read “Charter?values” into a given statute in such a way that the statute can be presumed to comply with the Charter. This method, however, cannot be seen to alter the provisions of the statute, nor can it allow for an interpretation that is at odds with the statutory text itself (Caron, para 61).
How, then, did Justices Rowe and C?té arrive at the same conclusion as the majority while disagreeing wholesale with their arguments? The answer lies in the standard of review. Justice Rowe noted that the CLP acknowledged that it could decide any matter of law within its jurisdiction, and that a duty to apply the Quebec Charter?accompanied this power. The CLP refrained, however, from applying the Quebec Charter?to Mr. Caron’s matter, finding that its powers to interpret and apply the Act?and afford remedies in accordance with this application rendered the duty to accommodate superfluous. Centre Miriam, therefore, was only required to abide by the Act, and not the broader duty to accommodate that comes from the Quebec Charter.
The Quebec Superior Court applied the reasonableness standard and found the CLP’s decision to be unreasonable. When Centre Miriam appealed this review to the Quebec Court of Appeal, however, that court applied the correctness standard. It is this approach that Justices Rowe and?C?té favoured, arguing that whether or not the Quebec Charter?applies to a statute is a question of law, and one not properly within the scope of the administrative decision-maker’s expertise (Caron, para 74). While deference on matters relating to the home statute will engage the reasonableness standard, application of the Quebec Charter?engages the correctness standard.
The CLP’s decision was incorrect, according to Justice Rowe and the Quebec Court of Appeal, because “put simply, Mr. Caron’s Quebec Charter?rights exist in addition?to?his statutory rights under the Act” (Caron, para 93). Justice Rowe argued that for the CLP to opt not to engage the Quebec Charter?is a decision that speaks to its jurisdictional powers. According to Dunsmuir, determinations of jurisdiction are matters that engage the standard of correctness (Caron, para 80 citing Dunsmuir, para 59). For this reason, Mr. Caron’s matter should be returned to the CLP, which should consider his termination in light of the duty to accommodate set out in the Quebec Charter.
As we see from the diverging reasons and approaches applied in Caron, the truth is one, but the wise see it variously.?While philosophically this may be an acceptable notion – and even a preferable one – for the sake of consistency and practicality in applying one approach or the other upon judicial review, greater clarity is needed. As the administrative law enthusiasts amongst us wait with baited breath for these upcoming decisions on the standards of judicial review, Caron?sheds light on why these standards of review need, well, reviewing.
?As the Court notes, amendments that came into force in 2016 resulted in a number of structural changes to the administrative bodies hearing disputes arising out of the Act. The CSST’s name was changed to the Commission des norms, de l’équité, de la santéet de la sécuritédu travail (CNESST). The CLP was replaced by the Administrative Labour Tribunal’s (ALT) occupational health and safety division. The roles of each body did not change substantively. The majority uses the names of the bodies that heard Mr. Caron’s case, while the concurring reasons of Justices Rowe and Coté adopt the new names.
?This is a paraphrase of a passage from the Rigveda, a sacred text of Hinduism: “Truth is one; the wise call it by many names” (RV I.64.46).