Labour and Employment Law Client Conference – … · McCarthy Tétrault LLP mccarthy.ca 2012 Labour and Employment Law Client Conference – Québec Conference Program 8:00 a.m

Labour and EmploymentLaw Client Conference –Québec

November 2, 2012

McCarthy Tétrault S.E.N.C.R.L., s.r.l.

mccarthy.ca

Table of ContentA Conference Program

B Labour & Employment Law GroupSpeakers Profiles

C What’s New in Labour and Employment Law?André Baril and Nathalie Gagnon

D Reasonable Notices : current trendsSimon-Pierre Hébert and Anna Jankowska

E Human Rights : The Year in ReviewRachel Solyom and Audrey Lévesque

F Amendments to the Environment Quality Act and Employment LawJacques Rousse and Michel Gagné

G Non-Compete and Non-Solicitation: An UpdateAndré Baril, Simon-Pierre Hébert and Rachel Solyom

H Medical Information: What are your rights?Jacques Rousse, Nathalie Gagnon and Anna Jankowska

I Investigations in the WorkplacePierre Jolin, Guylaine Lacerte and Audrey Lévesque

McCarthy Tétrault LLP

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2012 Labour and Employment LawClient Conference – Québec

Conference Program

8:00 a.m. Continental breakfast and registration

8:45 a.m. Welcome and Introduction

Sunil Kapur

9:00 a.m. What’s New in Labour and Employment Law?

André Baril and Nathalie Gagnon

Presentation of various cases of interest, particularly concerning electronic pay slips, tripartiterelationships and payment of overtime and holidays.

10:00 a.m. Reasonable Notices : current trends

Simon-Pierre Hébert and Anna Jankowska

Review of the latest trends in Québec court decisions regarding notices and criteria influencingthe amounts awarded.

10:30 a.m. Break

10:45 a.m. Human Rights : The Year in Review

Rachel Solyom and Audrey Lévesque

Overview of decisions of the civil courts and administrative tribunals in 2012 that werelandmarks for innovation in the field of human rights in the workplace.

11:15 a.m. Amendments to the Environment Quality Act and Employment Law

Jacques Rousse and Michel Gagné

Impacts on businesses of recent amendments to the Environment Quality Act in relation tolabour law.


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11:45 a.m. Lunch, team introductions and questions

1:15 p.m. Workshops

A. Non-Compete and Non-Solicitation: An Update (given in French)

André Baril, Simon-Pierre Hébert and Rachel Solyom

Discussion of the latest developments concerning employees’ obligations versus employers’rights when an employment contract is terminated.

B. Medical Information: What are your rights?

Jacques Rousse, Nathalie Gagnon and Anna Jankowska

Rights granted to employers who have an interest in obtaining more information on theiremployees when they are absent due to illness.

C. Investigations in the Workplace (given in French)

Pierre Jolin, Guylaine Lacerte and Audrey Lévesque

Discussion of the appropriate ways to conduct investigations in the workplace.

2:15 p.m. Break

2:30 p.m. Workshops

A. Non-Compete and Non-Solicitation: An Update

André Baril, Simon-Pierre Hébert and Rachel Solyom

Discussion of the latest developments concerning employees’ obligations versus employers’rights when an employment contract is terminated.

B. Medical Information: What are your rights? (given in French)

Jacques Rousse, Nathalie Gagnon and Anna Jankowska

Rights granted to employers who have an interest in obtaining more information on theiremployees when they are absent due to illness.

C. Investigations in the Workplace (given in French)

Pierre Jolin, Guylaine Lacerte and Audrey Lévesque

Discussion of the appropriate ways to conduct investigations in the workplace.

3:30 p.m. Cocktail

André BarilLawyer Profile

McCarthy Tétrault LLPmccarthy.ca

TITLE

Partner

OFFICE

Montréal

DIRECT LINE

514-397-4123

E-MAIL

[email protected]

LAW SCHOOL

Université de Montréal,BCL, 1990

BAR ADMISSIONS

Québec, 1991

Biography

André Baril is a partner in our Labour & Employment Group in Montréal.

Mr. Baril acts for employers in a number of sectors, including manufacturing, transportation, financial

institutions and universities.

He advises clients on all aspects of both provincial and federal labour and employment law, including collective

bargaining, collective agreement administration, wrongful dismissal, employment agreements, employment

policies, employment standards as well as workplace discrimination and harassment.

Mr. Baril acts as counsel to employers in all aspects of provincial and federal labour and employment litigation,

including acting as counsel before Québec's Commission des relations du travail, the Canada Industrial

Relations Board, boards of arbitration, the Human Rights Tribunal and other boards and tribunal, including civil

courts. He also regularly conducts collective bargaining on behalf of employers and represents employers in

mediation and alternative dispute resolution of disputes. Mr. Baril appears as a leading lawyer in labour and

employment law in the last edition of Best Lawyers in Canada.

Mr. Baril is a regular speaker on labour, employment and human rights matter. He received his B.Sc. in 1987

from McGill University and his BCL in 1990 from Université de Montréal. He was admitted to the Québec bar in

1991.

Michel GagnéLawyer Profile


TITLE

Partner

OFFICE

Montréal

DIRECT LINE

514-397-4204

E-MAIL

[email protected]

LAW SCHOOL

Université Laval, LLB,1987

BAR ADMISSIONS

Québec, 1989

Biography

Michel Gagné is a partner in our Litigation Group in Montréal. His practice focuses on commercial and civil

litigation, and more specifically on complex technical litigation.

Mr. Gagné specializes in defending class actions as well as environmental litigation. He is involved in the

defence of product liability class actions related to pharmaceutical products and consumer products. He has

extensive experience in personal injury cases and in cases involving soil and groundwater contamination. He

regularly pleads before the civil courts. His experience includes numerous litigations for damages, injunctions,

and judicial reviews. He is skilled in statutory penal law and has pleaded before numerous administrative

tribunals as well as arbitration boards.

He has had the opportunity to lead cases in various fields—including technology and intellectual property,

administrative and constitutional law, as well as expropriation. He has led contractual and unfair competition

disputes. His experience includes lawsuits with respect to manufacturers’ liability and matters related to the

Consumer Protection Act. He also possesses extensive experience in health law, medical malpractice and

disciplinary law.

Mr. Gagné regularly provides advice and guidance to clients in the context of potential litigation to minimize

their risk of liability. Many clients seek his experience and judgement to obtain strategic advice.

Mr. Gagné also regularly gives lectures, including for the Québec bar’s continuing education services, the

Canadian Bar Association, Insight, and the Canadian Institute. Mr. Gagné has taught pleading techniques at

the École du Barreau du Québec. He is a past Chair of the Environmental Section of the Québec Division of the

Canadian Bar Association and a member of the Defense Research Institute, an American organization.

He has co-authored numerous articles, including: La preuve dans un contexte électronique, 2001; L’incidence

de la condition personnelle préexistante de la victime sur l’évaluation des dommages : l’importance du lien

causal, 2003; Recours pour troubles de voisinage : les véritables enjeux, 2004; Les recours collectifs et


Michel GagnéLawyer Profile

l’environnement : que nous réserve la prochaine décennie?, 2005; La preuve à l’étape de l’autorisation d’un

recours collectif : à la recherche de l’équilibre, 2006; and Développements sans précédent en 2006-2007 dans

le domaine des recours collectifs en matière environnementale, 2007; Le droit à un environnement sain et

respectueux de la biodiversité : valeur symbolique ou effet concret?, 2009.

Mr. Gagné was recognized in the 2007 edition of the Guide to the Leading U.S./Canada Cross border Litigation

Lawyers in Canada published by Lexpert. He was also recognized in the 2011 and 2012 editions of Who’s Who

legal: Canada as one the Canada’s leading practitioners in the defence of product liability related claims. Mr.

Gagné appears as a leading lawyer in Environmental Law, in the last edition of Best Lawyers in Canada.

Mr. Gagné received his Bachelor of Laws degree from the Université Laval in 1987 and was called to the

Québec bar in March 1989.

Nathalie GagnonLawyer Profile


TITLE

Partner

OFFICE

Montréal

DIRECT LINE

514-397-4205

E-MAIL

[email protected]

LAW SCHOOL

Université deMontréal, LLB, 1993

BAR ADMISSIONS

Québec, 1994

Biography

Nathalie Gagnon is a partner in our Labour & Employment Group in Montréal.

Ms. Gagnon's practice is focused exclusively on management-side labour and employment law in sectors such

as manufacturing, services, pharmaceuticals, financial institutions and universities.

She developed an expertise in a variety of employment-related matters at both the provincial and federal level,

including labour standards, employment agreements, employment policies, wrongful dismissal actions,

employee terminations, human rights, privacy as well as access to information.

Ms. Gagnon regularly represents both provincially and federally regulated employers before various

administrative tribunals as well as before the civil courts and labour arbitrators. She is also regularly involved in

mediation, conciliation and other alternate dispute resolution processes. Ms. Gagnon appears as a leading

lawyer in labour and employment law in the last edition of Best Lawyers in Canada.

Ms. Gagnon is a frequent lecturer at seminars and conferences relating to employment and labour law. She

received her bachelor of civil law from Université de Montréal in 1993. She was admitted to the Québec bar in

1994.

Simon-Pierre HébertLawyer Profile


TITLE

Partner

OFFICE

Montréal

DIRECT LINE

514-397-4104

E-MAIL

[email protected]

LAW SCHOOL


BAR ADMISSIONS

Québec, 2002

Biography

Simon-Pierre Hébert is a partner in our Labour & Employment Group in Montréal.

Mr. Hébert’s practice covers numerous aspects of labour and employment law including hiring, termination of

employment, labour standards, union certification, occupational safety and health as well and the interpretation

and negotiation of collective agreements. He frequently represents clients before grievance arbitration

tribunals, the Commission des relations du travail, the Commission des lésions professionnelles and civil

courts.

Mr. Hébert has developed expertise in injunctions, whether to enforce non-competition and non-solicitation

clauses or deal with picketing issues and other pressure tactics used by unions.

Mr. Hébert has solid experience in the manufacturing, services, health and education sectors. He received his

Bachelor's degree in Civil Law (LLB) from Université Laval in 2000, and was called to the Québec bar in May

2002.

Anna JankowskaLawyer Profile


TITLE

Associate

OFFICE

Montréal

DIRECT LINE

514-397- 4264

E-MAIL

[email protected]

LAW SCHOOL

Université deMontréal, LLB

BAR ADMISSIONS

Québec, 2011

Biography

Anna Jankowska is an associate in the Labour & Employment Group in Montréal. Ms. Jankowska advises

employers on matters of employment standards, employment contracts, accreditation procedures, collective

agreement interpretation, occupational health and safety and human rights, among many other things.

Ms. Jankowska holds a Bachelor of Laws (LLB) degree from the Université de Montréal as well as a JD degree

in Common Law from Queen’s University. She was called to the Québec Bar in 2011, and is a member of the

Canadian Bar Association and Young Bar Association of Montréal.

Pierre JolinLawyer Profile


TITLE

Counsel

OFFICE

Québec

DIRECT LINE

418-521-3042

E-MAIL

[email protected]

LAW SCHOOL


BAR ADMISSIONS

Québec, 1969

Biography

Pierre Jolin is a counsel in our Labour & Employment Group in Québec City.

Mr. Jolin practises primarily in the areas of human resources, civil litigation and construction law. He pleads

frequently before the courts.

For many years, Mr. Jolin was a partner in one of the major law firms in Québec City before joining McCarthy

Tétrault.

Mr. Jolin is a board member and an advisory member for many institutions. He has also taught civil law at

Université Laval.

He appears in several editions of the Canadian Legal Lexpert Directory, a guide to the leading law firms and

practitioners in Canada. In the 2009 edition, he is recommended as a leading lawyer in the area of labour. Mr.

Jolin also appears as a leading lawyer in labour and employment law in the last edition of The Best Lawyers in

Canada of the National Post.

Mr. Jolin was admitted to the Québec bar in 1969 after completing legal studies in the Faculty of Law at the

Université Laval.

Sunil KapurLawyer Profile


TITLE

Partner

OFFICE

Toronto

DIRECT LINE

416-601-8339

E-MAIL

[email protected]

LAW SCHOOL

Osgoode Hall LawSchool, LLB, 1995

BAR ADMISSIONS

Ontario, 1997

Biography

Sunil Kapur is a partner and the Practice Lead of our Labour & Employment Group in Toronto.

Mr. Kapur has advised and represented employers in the sectors of financial services, manufacturing,

transportation, education, health care, security, information technology, resources and public service. Mr.

Kapur has advised and represented those employers in labour board proceedings, arbitration, mediation,

collective bargaining, employment litigation, judicial reviews, civil appeals and human rights. Mr. Kapur has

advised numerous fortune 500 companies on labour and employment matters arising from mergers and

acquisitions. He regularly provides training for clients on a wide range of issues.

Mr. Kapur is a former part-time member of the Ontario Human Rights Tribunal. Mr. Kapur was a founding

member of the Advisory Committee to the Ontario Labour Relations Board.

Mr. Kapur is a regular speaker on labour, employment and human rights matters. He is a member of the

business and employment sections of the American Bar Association, the Ontario and Canadian Bar

Associations and the Canadian Association of Counsel to Employers. . He is also co-author of “A Legal Guide

to the Accessibility for Ontarians with Disabilities Act, 2005”, published by Canada Law Book.

Mr. Kapur received his B.Sc. from the University of Toronto in 1992. He was an Ontario Graduate Scholar and

has won several academic awards from the University of Toronto. Mr. Kapur received his LLB from Osgoode

Hall Law School in 1995 and was called to the Ontario bar in 1997.

Guylaine LacerteLawyer Profile


TITLE

Associate

OFFICE

Québec

DIRECT LINE

418-521-3068

E-MAIL

[email protected]

LAW SCHOOL

Université Laval, LLB, 2005

BAR ADMISSIONS

Québec, 2006

Biography

Guylaine Lacerte is an associate in our Labour & Employment Group in Québec City.

She represents employers in the private and public sectors. Her practice covers numerous aspects of labour

and employment law including hiring, termination of employment, disciplinary action, labour contracts, labour

standards, psychological harassment, union certification, occupational safety and health as well as the

interpretation and negotiation of collective agreements.

Ms. Lacerte received her Bachelor of Law (LLB) degree from Université Laval in 2005 and was called to the

Québec bar in 2006. She also holds a Management Certificate from the University of Calgary, which she

obtained in 2008.

Audrey LévesqueLawyer Profile


TITLE

Associate

OFFICE

Montréal

DIRECT LINE

514-397- 7096

E-MAIL

[email protected]

LAW SCHOOL

Université Laval: LLB

BAR ADMISSIONS

Québec, 2008

Biography

Audrey Lévesque is an associate in our Labour & Employment Group in Montréal.

Ms. Lévesque advises employers on a variety of matters including interpretation of collective agreements,

certification processes, occupational health and safety issues, imposition of disciplinary measures, rights and

obligations under employment contracts and labour standards.

Ms. Lévesque received her Bachelor of Civil Law (LLB) from Université Laval. She was called to the Québec

Bar in 2008 and is a member of the Canadian Bar Association and the Young Bar Association of Montréal.

Jacques RousseLawyer Profile


TITLE

Partner

OFFICE

Montréal

DIRECT LINE

514-397-4103

E-MAIL

[email protected]

LAW SCHOOL

Université de Montréal,LLL, 1981

BAR ADMISSIONS

Québec, 1982

Biography

Jacques Rousse is the firm-wide Practice Group Leader of our Labour & Employment Group. He is a partner

practising in Montréal.

He advises management in all matters with respect to human resources and executive compensation. In the

event of litigation, he acts before arbitration boards, administrative tribunals and the civil courts in matters

related to grievance arbitration, employment contracts, wrongful dismissals and human rights complaints. Mr.

Rousse also appears before tribunals in matters concerning workers’ compensation, occupational health and

safety, and privacy law. Furthermore, he has acquired considerable experience in collective bargaining, as well

as in labour and employment matters related to restructurings and mergers and acquisitions.

He represents a wide number of private and public sector employers both unionized and non-unionized,

including companies and organizations in the manufacturing, health, financial, hospitality and service sectors.

Mr. Rousse is a member of the Ordre des CRHA et CRIA du Québec. He has spoken at numerous conferences

and seminars related to labour relations, human rights, and occupational health and safety. Mr. Rousse is

recognized in the 2012 edition of Best Lawyers in Canada as a leading lawyer in the field of Labor &

Employment Law.

He received his LLL from the Université de Montréal in 1981 and was called to the Québec bar in 1982.

Rachel SolyomLawyer Profile


TITLE

Partner

OFFICE

Montréal

DIRECT LINE

514-397-4445

E-MAIL

[email protected]

LAW SCHOOL

McGill University,BCL/LLB, 2002

BAR ADMISSIONS

Québec, 2003

Biography

Rachel Solyom is a partner in our Labour & Employment Group in Montréal.

Ms. Solyom’s practice is focused exclusively on management-side labour and employment law, with a

particular emphasis on providing employment advice and support in all aspects of corporate restructuring and

mergers and acquisitions. She has advised and represented domestic and foreign companies in various

industry sectors, including technology, pharmaceuticals, banking, finance and manufacturing.

Ms. Solyom has developed an expertise in a variety of employment-related matters including successor

employer issues, labour standards, privacy, access to information, pay equity, and workers’ compensation. Ms.

Solyom frequently represents both provincially and federally regulated employers in litigation before the various

administrative tribunals, as well as before the civil courts and labour arbitrators.

Ms. Solyom regularly speaks at conferences and conducts workplace seminars and training on a variety of

employment matters. She participates actively in pro-bono matters and is a founding member of the Legal

Education Program on Human Rights, organized in association with the Québec Branch of the Canadian Bar

Association.

Ms. Solyom received her bachelor’s degree in political science from the University of Ottawa in 1998, and her

BCL and LLB from McGill University in 2002. She was called to the Québec bar in 2003 and is a member of the

Canadian Bar Association and of the Junior Bar Association of Montréal.

Martine St-LouisLawyer Profile


TITLE

Counsel

OFFICE

Montréal

DIRECT LINE

514-397-5450

E-MAIL

[email protected]

LAW SCHOOL

Université deMontréal, LLB, 1987

BAR ADMISSIONS

Québec, 1988

Biography

Martine St-Louis is counsel in our Labour & Employment Group in Montréal.

For almost 20 years, Ms. St-Louis has assisted businesses in the admission of foreign workers into Canada. In

addition, she counsels companies as well as individuals and their family through various stages of their

establishment in Canada, either on a temporary or permanent basis. She works closely with a multidisciplinary

team to provide solutions to related international taxation, social coverage and pension plans.

Ms. St-Louis received her LLB from the Université de Montréal in 1987 and was called to the Québec bar in

1988.

What’s New in Labourand Employment Law?André Baril and Nathalie Gagnon

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What’s New in Labour andEmployment Law?I. Introduction

From electronic pay sheets to the notion of employer in a tripartite relationship, the labour relations universehas gone through many upheavals in the past year. Here are the decisions that defined the year 2012.

1. An Employer’s Obligation to Provide its Employees With a Pay Sheet onPaper: an Obligation not yet Determined

1.1 The L’Oréal Canada Inc.1 Case

In this case, given the silence of the applicable collective agreement, the issue was to determine whether anemployer could replace the pay sheet issued to the employees on paper with an electronic pay sheetaccessible via a secure system.

Section 46 of the Act respecting Labour Standards (ARLS), which governs pay sheets, does not specify howthe payroll information must be communicated. The arbitrator thus determined that it had to be interpretedaccording to Section 2 of the Act to Establish a Legal Framework for Information Technology (AELFIT), whichstipulates that an electronic document is legally equivalent to a document on paper. The arbitrator concludedthat the employer could choose the type of medium on which it intended to deliver the pay sheet to itsemployees, on condition that the employer fulfilled its obligation to deliver it concomitantly with the employee’spayment.

The arbitrator also declared that she was satisfied that the employer had made a certain number ofworkstations available to the employees, allowing them to have access to their pay sheet and to print itdirectly in the workplace, as well as providing IT support for these workstations. Thus, she said, the employerwas not merely making the pay sheet accessible, but effectively providing it to the employees.

Finally, the arbitrator concluded that hosting the information on a secure site respects the rules for protectionof personal information in that it reasonably ensures the confidentiality of the process.

1.2 The Commission scolaire Monts-et-Marées2 Case

Interpreting both the collective agreement, which stated the right of every employee to “receive his pay stub”and Section 46 of the ARLS, the arbitrator concluded that receiving a notice by computer indicating that thecopy of pay statement is available is not the same as “receiving his pay stub.” Indeed, according to thearbitrator, the employer has an obligation to “deliver” a pay sheet to the employee, and this does not mean“only making this pay sheet accessible.” The board explained that “in its usual meaning, the verb ‘to receive’must be interpreted as ‘to be put in possession’ of something.”

1 Union des Routiers, brasseries, liqueurs douces et ouvriers diverses industries, section locale 1999 and L’Oréal Canada inc. (union grievance),D.T.E. 2012 T-154 (A.T.) (Me Louise Viau).2 Syndicat de l’enseignement de la région de La Mitis and Commission scolaire des Monts-et-Marées, D.T.E. 2012T-214 (A.T.),(Me Francine Beaulieu). [Quotations are translated]

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Moreover, Arbitrator Beaulieu considered, contrary to Arbitrator Viau, that the application of the AELFITmeans that the employer cannot oblige the employee to receive a document on media other than paper or bymeans of technology not available to the employee.

The board in this case thus ordered the employer to allow employees to receive their pay statement on paperor electronically, as they choose.

1.3 The Practical Consequences of These Decisions

The two arbitration decisions rendered during the past year show us that there is a difference of interpretationregarding how an employer can deliver a pay sheet adequately. For the time being, in the absence of a highercourt decision (and in the absence of precise wording in the applicable collective agreement), the electronicoption should remain an option offered parallel to pay sheets on paper, and it will be preferable for theemployer to consider the following factors: delivery of the pay sheet concomitantly with payment of wages,possibility for the employees to consult previous pay sheets, facilitating access to a computer, providingtraining to employees on the implemented computer program, secure the implemented computer system andassociating the union with the approach.

2. Analysis of the Grounds of Dismissal: the Héma-Québec3 Case

2.1 The Decision

In this case, the Québec Superior Court (QSC) heard an application for judicial review of a decision of theCommission des relations du travail (CRT) in which it had been decided that the dismissal imposed on theplaintiff should be cancelled and that she should be reinstated in her job.

More specifically, the CRT found that, even though Héma-Québec had carried out a vast administrativereorganization and the plaintiff’s position had indeed been abolished within the context of this reorganization,this abolition was based on a criterion determined in such an arbitrary and succinct manner that it reflectedthe employer’s intention to use the reorganization as a pretext to get rid of a problem employee.

Applying reasonableness as the standard of review, the QSC relied on the assessment by the Commissioner,who had concluded from the analysis of the proof that Héma-Québec’s decision had been influenced bysubjective criteria specific to the plaintiff, such as her reluctance to travel and her difficult relationship with hersuperior. The QSC added that, in view of the very specialized nature of the expertise developed by theplaintiff, her presence in the organization could turn out to be a major advantage when her replacementretired.

2.2 The Practical Consequences of This Decision

An administrative reorganization in fact may constitute a dismissal not made for good and sufficient causewhen the selection criteria used by the employer are shown to be biased and subjective.

Moreover, in the event that the dismissal is considered to be a dismissal by the CRT, in the absence ofspecial circumstances preventing reinstatement, it will be ordered. This is particularly the case when theadministrative reorganization leaves the position held by the plaintiff almost intact.

3 Héma-Québec c. Commission des Relations du Travail, 2012 QCCS 1431.

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3. When an Employee no Longer Wishes to Resign, He Complains of aConstructive Dismissal: the Lafalaise4 Case

3.1 The Decision

On November 19, 2009, the griever notified the employer that he was not available to work after November 30due to a trip abroad. The employer refused to grant him a leave without pay. The next day, the employer sentthe griever a model letter of resignation. The griever transcribed the text and signed it the same day. OnNovember 30, he addressed a letter to his superior informing her that he had changed his mind and no longerwished to resign. The griever worked until the following December 1. He filed this complaint, alleging he hadbeen the object of a constructive dismissal. He added that he had not given free and enlightened consent tohis resignation. The employer maintained that, in view of the absence of dismissal, the Arbitration Boardestablished under Section 240 of the Canada Labour Code had no jurisdiction.

A “constructive dismissal” occurs when an employee is induced to submit his resignation due to a substantialmodification of the essential conditions of his contract of employment, made unilaterally by the employer,without reasonable notice or serious cause. Leave without pay for personal reasons is not a condition ofemployment under the contract. It is a mere prerogative of the employer, who may grant it on the basis ofobjective criteria, which were not fulfilled, according to the employer, in the circumstances of the plaintiff’srequest. Therefore, there was no disguised dismissal.

Moreover, resignation is a unilateral act whereby an employee terminates his employment relationship. Forthe resignation to be valid, the employee must provide a free and enlightened consent to the act ofresignation. However, the consent may be vitiated by one of the causes of cancellation of a contract. In thiscase, the plaintiff did not suffer any threat, pressure or violence of such nature that the consent to hisresignation could not have been given validly. Moreover, as he wrote in his email of November 30, hechanged his mind. His consent to his resignation, delivered on November 20, was free and voluntary, and theemployer was in no way bound to accept the withdrawal of the plaintiff’s resignation.


The refusal to allow an employee to benefit from a privilege, such as a leave without pay, cannot generate aconstructive dismissal. This is the exercise of the employer’s prerogative, a prerogative not subject to review,except in cases of abuse of right.

Moreover, resignation is a unilateral act which cannot be retracted as the employee sees fit. In the absence ofgrounds of cancellation specific to the law of obligations, the resignation remains in force and binds theemployee who exercised this right.

4 Lafalaise and Fido Solutions inc. (Montréal, Québec), 2012 EXPT-712 (A.T.), (Me Pierre Lamarche).

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4. Transfer of Tasks Between Establishments: The Sico,5 Saputo6 and MaaxBath7 Cases

4.1 The Sico Decision

Clause 2.01 of the collective agreement mentioned that it covered three establishments. It also provided that:“subject to the provisions of Section 2, the Company undertakes not to assign work to employees excludedfrom the bargaining unit and/or to management personnel that is normally performed or that is under thejurisdiction of the employees included in the bargaining unit.”

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In fact, the employer transferred work performed in Québec by seven employees covered by clause 2.01 topersons not covered by the certification and who work at a plant located in Toronto. The union maintained thatthe prohibition provided for in clause 26.01 did not only apply to the three plants covered by clause 2, butrather that no type of work covered by the prohibition could be performed elsewhere than at the three subjectestablishments.

According to Arbitrator Sylvestre, notwithstanding the special situation created by the acquisition of acompany, the new employer is placed in the same position as the former employer regarding the applicablecollective agreement. The employer undertook to protect the work normally performed by the employeesincluded in the bargaining unit, regardless of management personnel or any other employee outside thesubject plants. By assigning work outside the subject plants, namely to Toronto, regardless of the reasonswhy it did so and regardless of whether direct consequences existed for the employees affected,Arbitrator Sylvestre concluded that the employer contravened clause 26.01. Indeed, clauses 26.01 and 27.01confirm the intention of the parties to protect the work of the employees who are part of the bargaining unitand also to limit the possibilities for the employer to subcontract work normally performed by employees whoare part of the bargaining unit; allowing the employer to have work performed at another company belongingto the employer in Toronto makes no more sense than if the employer had ordered the work performed bymanagement personnel of the subject company or by other employees not included in the bargaining unit.


On the one hand, this decision confirms what was already known about the disposal and acquisition ofcompanies. One of the rationales of a collective agreement is to protect job security. The new employer isalways bound by the collective agreement and cannot contravene it, regardless of the circumstances. On theother hand, this decision supports a recent current of opinion that gives the collective agreement a scope thatextends far beyond the establishments it is meant to govern.

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4.3 The Saputo Decision

Due to a restructuring, the employer announced the transfer of order preparation work from the Trois-Rivièresestablishment to the Boucherville establishment and the move of customer service and various administrativepositions to other establishments. The union contested the transfer of tasks normally accomplished by the

5 Syndicat des employés de Sico Longueuil CSN and Sico inc. (group grievance), 2011 EXPT-2036 (A.T.), (Mr. Jacques Sylvestre).6 Syndicats des salariées de produits alimentaires de la Mauricie (CSD) (production employees and office employees) and Saputo Produits LaitiersCanada S.E.N.C. / Saputo Dairy Products Canada G.P., D.T.E. 2012T-228 (A.T.), (Me Jean-Guy Ménard).7 Syndicat des salariés d’acrylique de Beauce inc. (CSD) and Maax Bath inc., Acrylica Division, and Centre de distribution Cameron (UnionGrievances), D.T.E. 2012 T-623 (A.T.) (Me Marcel Morin). Note that judicial review of this case is underway.8 [Translation]9 Syndicat des travailleurs de Beau-Roc inc. (CSN) and Ateliers Beau-Roc inc., D.T.E. 98T-238 (A.T.) (Mr. Jean-Louis Dubé) and Syndicat LeGroupe Lactantia (CSD) and Parmalat Canada inc / Parmalat Canada Inc. (union grievance), D.T.E. 2009T-779 (A.T.) (Me Denis Tremblay),application for judicial review dismissed, D.T.E. 2009T-665 and application for leave to appeal to the Court of Appeal dismissed, D.T.E. 2009-778.

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bargaining unit’s employees to other establishments and demanded that all positions covered by the transferbe maintained.

Clause 3.04 of the agreement provides that “personnel outside the bargaining unit may not perform worknormally performed by employees who are part of the bargaining unit [...].”

10

In this case, “work normally performed by employees who are part of the bargaining unit,” within the meaningof this clause, was performed by persons other than the employees concerned. As for the expression“personnel outside the bargaining unit,” the question is whether the prohibition concerns managementpersonnel and employees, whether unionized or not, of the Trois-Rivières plant or whether it applies to themand to all employees working at the other establishments operated by the employer in Québec and Canada.

After reviewing the jurisprudence, Arbitrator Ménard concluded that the differences between the decisions onthe subject are explained by the wording of the clauses of the agreement studied or by differences in thefacts. In this case, the issue was to determine whether the employer had committed to maintain, at itsTrois-Rivières establishment, the work normally performed by the employees. He concluded that in this case,the agreement does not express a commitment by the employer to maintain, at the Trois-Rivièresestablishment, the work normally performed by the employees who were members of the bargaining unit. Hisreasoning was based, in particular, on the fact that the agreement defines the employer as “Saputo ProduitsLaitiers Canada S.E.N.C. 700, [...] Trois-Rivières.” Moreover, the clause in question contains exceptions thatcan only apply to the Trois-Rivières establishment. Finally, the fact that there is no provision prohibitingsubcontracting in the agreement is a determining factor, and he thus concluded that there was no breach ofthe agreement.

4.4 The Practical Consequences of the Decision

The “contracting in” clauses regarding work that may be assigned to other employees will be interpretedaccording to the special circumstances regarding the application of the clause. The relevant factors found inthe collective agreement will be used to interpret the application of the case at issue.

4.5 The Maax Bath Decision

A few months prior to the expiry of the collective agreement, the employer met with the union representativesto make proposals intended to enhance the company’s competitiveness. Given the union’s unfavourablereception of the proposals, the company’s senior management made the decision to transfer a certain numberof moulds that were being used for the Sainte-Marie production to other divisions of the company. The unionargued that 95 employees were laid off for a period of nine months following the transfer.

Clause 3.02 (a) of the agreement sets forth that:

Employees not covered by the bargaining unit […] shall not perform work normallyperformed by employees of the bargaining unit if the latter are reasonably availableto perform such work” which, according to the jurisprudence, corresponds to acontracting in clause. Clause 7.01 provides that “The Employer shall not subcontractwork normally performed by employees, unless it does not have the requiredqualified personnel or equipment to perform such work.” This clause has thecharacteristics of a contracting out clause. Finally, clause 7.02 mentions that “the

10 [Translation]

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application of clauses 3.01 and 7.01 shall, in no case, result directly or indirectly inthe layoff of a regular employee […].

11

In this matter, the union filed two grievances against the employer.

Regarding the first grievance, the union maintained that the employer violated clause 7 of the agreement bysubcontracting. The jurisprudence has determined that contracting out is not at issue when the plant engagingin the production is the property of the same company. For subcontracting to exist, a contract must existbetween two different and distinct corporations or persons. This was not the case in the present matter. Forthese reasons, the arbitrator decided to dismiss the first grievance.

The issue of the second grievance was to determine whether clause 3.02 of the agreement (contracting in)was breached owing to the fact that employees located in other divisions of the company performed workprotected by the collective agreement. To respond to this grievance, the arbitrator had to ask himself whetherclause 3.02 could extend to the other divisions of the Company. After reviewing decisions pertinent to thisissue, the arbitrator concluded that the contracting in clause had to be interpreted as extending to all of thecompany’s divisions. In the present case, clause 3.02 (contracting in) needed to be interpreted broadly sincethere existed, in addition to a contracting in clause, a contracting out clause, which is an indication that clearlyreflected the objective of protecting the work of unionized employees against any type of transfer outside theirunit. The arbitrator also justified his decision by stating that the notion of employer is defined in the agreementas being the company as a whole, without any address being mentioned. The name of the employer is that ofa company having several divisions.

4.6 Practical Implications of This Decision

This decision reaffirmed that a company may not subcontract to itself. Moreover, this decision pointed out thatthe collective agreement contains both a contracting in clause and a contracting out clause and that the term“Employer” is defined in the agreement as being a company and its divisions as a whole. These are twoindications that clearly reflect the objective of protecting the work of unionized employees against any type oftransfer outside their unit.

5. The Power of the Evidence in a Dismissal Case: The AMX Canada12 Case

5.1 The Decision

The employer is an importer and wholesaler of home automation devices. It hired the plaintiff in 2005 as asales representative and terminated his employment in 2010 for insufficient performance. The employeralleged that customers complained several times about the plaintiff’s incompetence and lack of technicalknowledge. He rebutted that the employer never informed him of any complaint.

The employer did not establish the actual existence of a breach or breaches by the plaintiff of his contractualobligations. Judge Bussière determined that the employer had not taken the necessary steps to ensure thatthe complaints received from the customers were well founded. The judge thus criticized the employer for noteven taking the trouble to ask some of the customers in question for details and then compare them with theplaintiff’s version and obtain explanations from him.

Even in the case of a tripartite relationship, in which the customer retains a right of oversight of itsco-contracting party’s personnel temporarily integrated into its organization, the jurisprudence has established

11 [Translation]12 Moran c. AMX Canada ltée / AMX Canada Ltd., 2011 QCCRT 0387.

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that the employer has to ensure the validity of a “request for withdrawal” from the customer beforetransferring, suspending or dismissing an employee. The dismissal was therefore nullified.


Even though “the customer is always right,” the employee has the right not only to be informed of the allegeddissatisfaction he causes the clientele, but the right to justify himself and give his version of the facts. Adismissal, as imposed in this case, is unjust, since the evidence did not satisfactorily support the groundsinvoked.

6. The Collective Agreement and its Validity: the Provigo13 Case

6.1 The Decision

Three days after the collective agreement expired, the employer declared a lock-out. The union called a strike,which ended a few days after the employer sent notices of termination of employment and collective dismissal(April 27, 2010) stipulated in the ARLS. The union then filed an end-of-strike notice and, grievances were filedto claim payment, for each employee, of 16 weeks’ salary as collective dismissal indemnity and to enforce therights stipulated in the collective agreement. The employer maintained that the arbitrator did not have thenecessary jurisdiction to settle the dispute due to the legal vacuum existing since the lock-out was called. Thearbitrator considered that the lock-out had ended on April 27, 2010. The arbitrator’s decision was contested bythe employer at the QSC.

According to the judge, the provisions of the collective agreement stipulated that the agreement remained inforce until March 31, 2010, the date when it became an interim agreement, subject to the rights of the partiesuntil the signing of a new collective agreement. Needless to say, the rights of the parties include the right tolock-out and the right to strike. If this clause is read in correlation with Section 59 of the Labour Code, It mustbe concluded that the terms of the collective agreement continue to apply at least up to the date of dismissalof the employees. Thus, there is no legal vacuum. Consequently, the arbitrator had jurisdiction to rule on theprovisions of the collective agreement and on those arising from the application of the ARLS.


This decision reaffirms that, even if the term of the collective agreement has expired, it may remain the lawbetween the parties, until the date of collective dismissal if the terms used so allow it.

7. Importance of a Promise: the Sears Canada14 Case

7.1 The Decision

The employer asked for the summary dismissal of the complaints under Sections 122.1, 124 and 123.6 of theARLS on the ground that the plaintiff did not honour the commitments he had made at a preparatoryconference to send the employer certain information regarding his recourses, despite the extension grantedby the CRT.

The plaintiff had been advised of the consequences of not acting on his commitments. Regarding hiscomplaint against a prohibited practice (forced retirement), he had undertaken to indicate which of the fourassumptions applied in his case. He did not answer this question in any way, with the result that the CRT andthe employer still did not know the answer at the time scheduled for the trial to begin. According to

13 Provigo Québec inc. c. Poulin, 2012 QCCS 1564 (Inscription in appeal, 200-09-007711-127).14 Abergel c. Sears Canada inc./ Sears Canada Inc., 2012 QCCRT 0080.

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Judge Flageole, the employer could not be required to defend itself against such a complaint when the plaintiffdid not specify the very basis of its recourse. In view of the additional time granted to the plaintiff and thenature of the commitment, the complaint was dismissed outright under Section 122.1 of the ARLS. Theplaintiff had also undertaken to produce a chronological presentation of the facts he intended to invoke insupport of his complaint for psychological harassment (dates and description of events and the names of thepersons involved). Such an undertaking was ruled to be non-exorbitant because he had the burden of provingthe existence of the psychological harassment. His complaint under Section 123.6 of the ARLS was thereforedismissed. Regarding the complaint under Section 124 of the ARLS, the commitments had concernedreparative measures, an aspect that generally is only discussed in a second stage of the hearing of acomplaint. Judge Flageole thus allowed the continuation of this complaint, since the prejudice to the employerwas more limited in this context.


This decision affirms the importance of procedure and proof in a lawsuit. Often, the success of a recoursedepends on the related procedure. In the Sears Canada case, it is not clear whether the problem originatedfrom the plaintiff’s counsel or from the plaintiff himself. In any event, it must be remembered that whenundertakings are made, they must be honoured on pain of severe penalties.

8. Overtime and Statutory Holidays: the Gestion Iamgold15 Case

8.1 The Decision

In this case, the issue was to determine whether the hours paid in the case of leave for a statutory holidaycoinciding with an employee’s weekly day off had to be counted as hours of work for the purposes ofaccumulation of overtime. The outcome of the case is based on the interpretation to be given to Section 56 ofthe ARLS, which sets out the following: “For the purposes of computing overtime, annual leave and statutorygeneral holidays with pay are counted as days of work.”

The employer concerned by the grievance operates an ore processing and conversion plant operating at alltimes. The union claimed payment of the overtime rate for statutory holidays falling on the employee’s weeklyday off on the grounds that the normal work week then exceeds the regulatory 40 hours. The employerargued that to be counted in the normal work week, the statutory holiday must correspond to a day when theemployee normally should have worked had it not been for the statutory holiday.

After an exhaustive review of the jurisprudence, Arbitrator Gagnon ruled in favour of the employer’sarguments and dismissed the grievance, concluding that “Section 56 of the ARLS does not have the purposeof giving an employee overtime he would not have had.”

16Thus, this provision “does not have the purpose of

granting additional benefits in terms of compensation for statutory holidays, but rather of not causing the lossof recognized benefits regarding the hours of work.”

17The arbitrator relied on the purpose of Section 56,

which he considered was primarily intended to govern the hours of work, and not the statutory holidayscheme.

15Syndicat national de l’automobile, de l’aérospatiale, du transport et des autres travailleurs et travailleuses du Canada (TCA-Canada), section

locale 666, col bleu / National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 666, BlueCollar and Gestion Iamgold Québec inc. – division Niobec, D.T.E. 2012T-155 (A.T.) (Me Denis Gagnon).16 Ibid., at para. 31. [TRANSLATION]17 Ibid., at para. 32. [TRANSLATION]

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This decision confirms that the hours of leave for a statutory holiday coinciding with a weekly day off must notbe added to the 40 hours of the normal work week and must therefore be compensated at the applicablestraight time rate. Only the hours for statutory holidays falling within the employee’s usual work schedule mustbe taken into account. However, it should be noted that this decision is the object of a pending application forjudicial review before the QSC.

9. Collective Agreement Deadlines and Psychological Harassment: Ville deQuébec18 Case

9.1 The Decision

In this decision, the issue was to determine which standard would be applicable if the collective agreementprovided for a more advantageous deadline than the ARLS did to file a grievance for psychologicalharassment.

A Ville de Québec employee filed a grievance for psychological harassment within the time stipulated in hercollective agreement. However, this time exceeded the prescription deadline of Section of the 123.7 of theARLS. The employer sought to have the grievance dismissed on the ground that it would be prescribedaccording to the ARLS. Arbitrator Laflamme confirmed that, under Section 94 of the ARLS, an agreement or adecree may grant an employee more advantageous conditions of employment than required in the ARLS. Thearbitrator also established that the deadlines required in a procedure governing the relations between anemployer and its employees are an integral part of the conditions of employment regarding which thesignatories of the collective agreement have agreed. Thus, in this case, the prescription deadline accepted tofile a grievance regarding psychological harassment was six months instead of 90 days.

Moreover, based on a factual analysis of the situation and the fact that the employer had followed theappropriate process to obtain a change of attitude on the part of the employee and thus improve theworkplace climate, the arbitrator concluded that the employer had not adopted vexatious conduct regardingthe griever. The employee’s invitation to a meeting, the time in which the employee was informed of themeeting and the solutions proposed during that meeting are all factors that were considered positively. Thishaving been said, no element in the employer’s conduct allowed a conclusion of psychological harassment.

9.2 Practical Consequences of This Decision

If an employee’s collective agreement grants the employee more advantageous conditions of employmentthan those required in the ARLS, the employee will benefit from the conditions set out in the agreement ratherthan those of the ARLS.

Moreover, if the employer follows the appropriate administrative process and shows behaviour consistent withthe normal exercise of management rights when it attempts to remedy an employee’s unhealthy attitude, itsconduct will not be qualified as psychological harassment.

18 Syndicat des fonctionnaires municipaux de Québec (FISA) and Québec (Ville de), (Marie Boissonneault), D.T.E. 2012T-262 (A.T.), (Mr. GillesLaflamme).

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10. Dismissal of an Agency Employee Considered to be an Employee of theEmployer: the Sport Maska Inc.19 Case

10.1 The Decision

In this case, the griever contested the employer’s decision to terminate his employment as anelectromechanic and alleged that he had the right to the grievance and arbitration procedure. The griever hadbeen recruited by a personnel agency and worked for the employer from August 2010 to January 2011 whilebeing paid by the agency. The day after the end of his employment with the agency, Sport Maska hired thegriever officially. However, it dismissed him one month later. Arguing that the 60-day probation period had notexpired because the griever was not considered an employee and had only been paid by the employer for30 days, the employer maintained that the griever could not contest his dismissal by means of the grievanceprocedure. The union argued that the griever had been considered an employee of the employer since thebeginning of his assignment by the agency.

Arbitrator Martin first recognized that the conditions of application of the provision of the collective agreementregarding the hiring of temporary personnel were not fulfilled in this case.

Moreover, the employer presented no proof regarding the relationship maintained between the griever and theagency and the nature of the services offered by the agency. Although the griever was recruited and paid bythe agency, the griever had participated in an interview process and tour of the premises similar in all respectsto a hiring process controlled by Sport Maska. Finally, the griever received his instructions from an employeeof the employer, who determined his priorities and his schedule.

Arbitrator Martin thus concluded that the griever was entitled to the grievance procedure because he had helda position covered by the certification for a long-enough period.


An employer who benefits from the services of a person employed by an agency must make sure to limit itsown involvement in the entire process of recruiting and management of this person. Any control the employerexercises will be interpreted in favour of the existence of an employer-employee relationship with thisindividual. Moreover, in the presence of a collective agreement, the employer should ensure that thecircumstances of hiring are such that they conform to the hiring parameters for temporary labour.

11. Classification of Employees in a Tripartite Relationship, Self-EmployedWorkers or Employees: the Agence Océanica Inc.20 Case

11.1 The Decision

In this decision, the Court of Québec (CQC) sat in appeal of a tax assessment issued by the Deputy Ministerof Revenue of Québec, who claimed amounts from the plaintiff, a nursing placement agency, in relation to thedeductions at source of its employees, nurses whom it placed with its clients in various centres wherehealthcare is provided. The plaintiff contested this assessment on the ground that these nurses were notemployees, but self-employed workers. The CQC analyzed the facts in the case according to the definitions ofthe fiscal laws in question, the CCQ, the Agence du Revenu du Québec (ARQ) interpretation bulletin and theteachings of the authorities and the jurisprudence.

19 Sport Maska inc. and Syndicat des métallos, section locale 7625 (Costica Mazare), D.T.E. 2012T-5 (A.T.), (Me Claude Martin).20 Agence Océanica Inc. c. Agence du revenu du Québec, 2012 QCCQ 5370 (Inscription in appeal, 500-09-022807-127).

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First of all, the applicable fiscal laws, apart from the ARLS, referred to the definitions of the Taxation Act. Inreading this act, the notion of payment of remuneration played an important role in the qualification of theemployer-employee relationship. Regarding the notion of enterprise, the criterion of risk of profits and loss hadto be considered. Under the CCQ, the following three points prevailed regarding the contract of employment:the work, remuneration and subordination. For the contract of enterprise, the questions were freedom orautonomy of performance in relation to the economic activity. The above-mentioned criterion of risk was alsotaken into consideration. The interpretation bulletin put the emphasis on the relationship of subordination, nomatter how minimal, to claim the existence of a contract of employment, as opposed to a contract ofenterprise, while analyzing other criteria, such as the economic criterion, ownership of the tools, etc. Theteachings of the authorities and the jurisprudence showed that this analysis was not simple, but that the wayto draw the right conclusions was to “identify the party who exercises the greatest control over all aspects ofthe employee’s work.”

21Added to this was the connection of the parties to this enterprise.

In light of all these elements, the CQC concluded that the plaintiff was the nurses’ employer, and that thenurses could not be considered as self-employed workers since they acted for the plaintiff, even though aportion of their labour relations tasks was assumed by the plaintiff’s clients. This having been said, the plaintiffacted as its clients’ mandatary and thus became responsible for paying the fiscal charges of its employees,the nurses.


This decision shows that in the presence of ambiguities regarding an employee’s status, namely whether he isa self-employed worker or an employee, certain specific criteria must be considered. This analysis remainsimportant regarding the application of many laws with different objectives. For this purpose, the courts willconsider the specific facts involved in light of the work relationship between the parties and theabove-mentioned laws.

It should be noted regarding the use of the services of placement agencies that, in the past year, severalbusinesses, including Aliments Da Vinci, were assessed for important amounts by the ARQ after having donebusiness with placement agencies that were not in good standing with the tax authorities.

22These businesses,

which had contracted in good faith with the agencies, were accused of submitting false invoices to claim QSTand GST tax credits (taxes paid on the services provided by the agencies which, in turn, did not forward saidsales taxes to the ARQ). No decision has been rendered to date, but cases are pending before the courts.Other proceedings can be anticipated, given the amounts at stake ($17 million assessed in 2011-2012). Toavoid such situations, it is important to obtain a certificate of compliance / tax remittance from anyco-contracting agency or any other service provider.

12. Use of the Employer’s Goods and Resources for Personal Purposes: theVillemure23 Case

12.1 The Decision

In this case, the issue was to determine whether the use of tools supplied by the employer for personalpurposes justified an employee’s dismissal.

21 Ibid., at para. 39.22 See the folllowing La Presse articles on this issue : http://affaires.lapresse.ca/economie/agroalimentaire/201207/26/01-4559545-aliments-da-vinci-en-difficulte.php et http://affaires.lapresse.ca/economie/quebec/201208/06/01-4562605-des-victimes-collaterales-des-agences-de-placement.php23 Villemure and L-3 Communications MAS (Canada inc.), D.T.E. 2012T-143 (A.T.), (Me Jacques Bélanger).

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The employer accused the griever of performing personal activities during working hours, including activitiesfor commercial purposes using the telephone and email address supplied by the employer. The employeewas warned several times regarding the unjustified loss of time and finally was suspended for investigation.

The arbitrator considered the special circumstances of the case, particularly the fact that the company doesbusiness with clients necessitating a very high confidentiality and security level. He also addressed the factthat the employee admitted his faults, that this type of behaviour had been tolerated from the griever in thepast, and that there was no proof that the use of the resources for personal purposes caused a reduction inthe employee’s productivity.

The arbitrator ruled that the employee’s dismissal was unjustified, because the personal use of the employer’sresources and goods did not seem to be abusive. The arbitrator concluded that occasional use of thetelephone and the computer for personal or family purposes was acceptable and understandable in anycompany. However, he reminded the parties that the use of these resources for lucrative personal purposeswas highly abusive and unacceptable.

The decision to dismiss the employee was replaced with a one-month suspension from work, because thistype of discipline has the purpose of offering the employee at fault the opportunity to correct his behaviour.


The employer’s discipline must be clear regarding the facts alleged against the employee and the prioritygiven or not given to these faults. If an employee uses the employer’s resources abusively for personalpurposes, it is in the employer’s interest to communicate clearly that it does not tolerate this type of abuse.However, the employer must not exaggerate the manner in which it qualifies an abusive use of resources forpersonal purposes.

13. The Explicit Incorporation of the Notice of Termination Provisions of the CivilCode of Québec Into Collective Agreements: the Continuation of the MungerPontiac Buick24 Case

13.1 The Decision

Articles 2091 and 2092 of the Civil Code of Québec (CCQ.) concern the reasonable notice of termination thatan employer must give its employee when it terminates his contract with an indeterminate term. In IsidoreGagnon ltée v. Tremblay, Fillion et Frères (1976) inc. v. Syndicat national des employés de garage duQuébec inc.

25(Isodore), the Supreme Court of Canada (SCC) ruled on the question of whether articles 2091

and 2092 of the CCQ were applicable to the Québec collective labour relations scheme. The SCC had thendecided that these articles were incompatible with the collective labour relations scheme.

In the present case, the employer issued a notice of collective dismissal to its employees. The union filed aseries of grievances against the notices of dismissal received by the employees, arguing that they did notconform to clause 17.05 on reasonable notice of termination under their collective agreement. Clause 17.05 ofthe collective agreement stipulated that articles 2091 and 2092 of the CCQ were an integral part of thecollective agreement and thus applied to the employees it covers.

The employer argued that articles 2091 and 2092 of the CCQ were inapplicable because they wereincompatible with the collective labour relations scheme in a unionized environment, according to the SCC’s

24Syndicat démocratique des employés de garage Saguenay-Lac-St-Jean c. Munger Pontiac Buick inc., 2012 QCCA 36 (application for leave toappeal to the Supreme Court of Canada dismissed).25 Isidore Gagnon ltée v. Tremblay, Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc., 2006 SCC 2.

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decision in Isidore, regardless of whether the reference to these articles is expressly provided in the collectiveagreement. The union argued that the SCC’s judgment in Isidore did not apply to a case in which the partieshad consented to include clauses 2091 and 2092 in the collective agreement.

After an analysis of the Isidore decision, the Québec Court of Appeal (QCCA) overturned the QSC’s decisionand ruled in favour of the union. In a decision authored by Justice Dutil, the QCCA concluded that articles2091 and 2092 of the CCQ, because they were incorporated explicitly into the collective agreement, arecompatible with the collective labour relations scheme governed by this agreement. Indeed, although theIsidore decision mentions that the collective labour relations scheme concerns the conditions of employmentof unionized employees which are negotiated collectively by the union, while the terms contained in thearticles of the CCQ refer to reasonable notices of termination within the context of an individual contract ofemployment, the parties’ freedom of contact is not impeded by this judgment in any way. The SCC never hadthe intention of preventing the inclusion of this clause and the QCCA recalled the importance of respecting thedecisions resulting from the negotiating process. Finally, any provision not contrary to public order could beincluded in a collective agreement. It is thus appropriate to make a distinction between the implicit integrationof these articles into collective agreements and their explicit integration.


This decision affirms that when they are integrated into a collective agreement resulting from the will of theparties in a negotiating process, articles 2091 and 2092 of the CCQ apply fully. An employer will determine bynegotiation whether or not it wishes to accede to the requirements of these provisions.

14. Period Considered in Mitigation of Damages: the Société en commanditeRésidence Salaberry (9000-4029)26 Case

14.1 The Decision

In this decision, the parties did not agree on the reparative measures following the partial acceptance of theunion grievance, which substituted a 15-day suspension for the dismissal of the griever. The union claimedthe lost salary for the 10-week period when the griever was unemployed, while the employer claimed it owednothing because she subsequently worked at a higher salary. In the present case, the arbitrator had to decidewhether the indemnity had to be computed over the entire subject period or on a segmented basis. To settlethe question, the arbitrator considered Section 43 of the ARLS, which provides that “wages must be paid atregular intervals of not over 16 days” and the provisions of the collective agreement, which stated that thesalary is paid every two weeks. These provisions operated in favour of the union’s position to differentiate theperiod during which the griever was unemployed from the period during which she worked for otheremployers.

The arbitrator concluded that to rule in favour of the employer, the employer had to prove that the griever hadnot made the necessary efforts to find a new job during the specific 10-week period. In fact, this had not beenproved in any way. Thus, the employer could not take advantage of the extra salary earned elsewhere and bereleased from its obligation to repair the harm suffered by the griever. To conclude otherwise would be unfairto the employee and would tend to imply that the griever did not make reasonable efforts to obtain a new joband minimize her losses during this period.

26 Syndicat des travailleuses et travailleurs de la Résidence Salaberry (CSN) c. Société en commandite Résidence Salaberry (9000-4029), D.T.E.2012T-566 (A.T.), (Me Huguette April).

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For an employer to avoid being compelled to pay certain amounts following the nullification of a dismissal, itwill be important for the employer to prove that the employee did not make a reasonable effort during theperiod covered by the measure adopted, and not by comparing all the amounts received since the dismissal.

15. Exception to the Obligation to Give Leave to its Employees on the Same Dayas the National Holiday: The Multi-marques Inc.27 Case

In this decision, the union complained that the employer had not complied with the provisions of the NationalHoliday Act (NHA) by continuing its activities on Thursday, June 24, 2010. In this regard, the employerclaimed to benefit from the exception set out in Section 5 of this act, which stated that:

In any establishment or service where, by reason of the nature of its activities, workis not interrupted on 24 June, the employer, in addition to paying to the employeeworking on 24 June the wages for the work done, must pay to such employee anindemnity provided for in Section 4, or grant him a compensatory holiday of one day.In the latter case, the holiday must be taken on the working day preceding orfollowing 24 June.

The employer had several plants that produced and distributed bread throughout Québec’s regions. It coveredabout one third of this market. The schedule of these activities was from Sunday morning to Friday afternoon.A 48-hour period between the start of production and delivery was necessary to ensure that the breaddelivered was always fresh. It was also established that the week of the Saint-Jean-Baptiste was an importantweek for bread sales. Thus, based on these facts, the employer argued that the nature of its activities allowedit to be exempted from closing its plants in 2010, when the national holiday fell on a Thursday.

Arbitrator Poulin shared the same opinion as the employer: if the employer’s operations were interruptedwhen the 48-hour period was important for the distribution process and freshness of its products, this wouldhave consequences for the company’s financial position. It was also proven that the week during which theSaint-Jean-Baptiste fell generated a lot of revenue for the employer. This would compromise the activities andrevenues of the employer, which would have problems with its specialty clientele, who would then choose topurchase elsewhere in order to have fresh bread on the shelves for the days after the Saint-Jean-Baptiste.The employer thus succeeded in proving that the nature of its activities required its plants to remain inoperation on the Saint-Jean-Baptiste.


To benefit from the exception of Section 5 of the NHA, an employer must prove that the closing of its businessfor one day will have significant consequences for its activities and its financial position. It must also prove thatit does not have the resources to mitigate differently the problems that this closing could cause.

27 Teamsters Québec, section locale 1999 / Teamsters Québec, Local 1999 and Multi-marques inc. (Canada Bread), Lévis plant (union grievance),D.T.E. 2012T-488 (A.T.), (Me Côme Poulin).

Reasonable Notices:Current TrendsSimon-Pierre Hébert and

Anna Jankowska

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Reasonable Notices: CurrentTrendsI. Introduction

It is essential for employers to ensure that the most difficult aspect of the employment relationship – itstermination – be handled in an appropriate manner. Keep in mind the words of Justice Iacobucci of theSupreme Court in the Wallace

1decision who stated:

The point at which the employment relationship ruptures is the time when theemployee is most vulnerable and hence, most in need of protection. In recognition ofthis need, the law ought to encourage conduct that minimizes the damage anddislocation (both economic and personal) that result from dismissal.

2

In this paper, we discuss the ways in which the employment relationship can be terminated, focusingspecifically on those terminations which are “without just cause,” which trigger the obligation to give notice orpay in lieu of notice.

II. Some Basic Contractual Rules

The employer must not abuse his contractual rights and must always act reasonably and ingood faith.

The content of the employment contract must not contravene public order, employment lawsor, if applicable, a collective agreement.

The employment contract is often a contract of adhesion, a contract in which the essentialelements are predetermined upon signing by one of the parties, generally the employer, andcannot be discussed. Qualifying the employment contract as a contract of adhesion triggersvarious legal protections of public order, which have the goal of protecting the party whoadheres to the contract. These various consequences include:

in cases where doubts exist regarding the interpretation to be given to a contract ofadhesion in employment, it must be interpreted in the adherent’s favour;

often a contract contains references to external clauses that are an integral part ofthe contract. However, in a case of adhesion, these clauses must be provided to theadherent at the time the contract is formed. Non-compliance with this rule results inthe nullity of the external clause;

illegible or incomprehensible clauses are null and void if they are prejudicial to theadherent; and

abusive clauses that put the adherent at an exorbitant and unreasonabledisadvantage in the contractual relationship are null and void, or the duties arising

1 Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.2 Ibid at p. 5.

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from them are reducible. For example, a termination clause cannot include a noticethat is inferior to the minimum notice required by the Act respecting labourstandards

3(ARLS) or, if applicable, the Canada Labour Code

4(CLC). In order to be

reasonable, this clause must be drafted clearly,5

without ambiguity, and must allowfor the termination of the contract without any potestative conditions. Further, byvirtue of Article 2092 of the Civil Code of Québec

6(CCQ), an employer may not

include in a notice clause or add to an employment contract a renunciation by theemployee of the right to take legal action against an ex-employer in exchange for anadditional indemnity where such clause has the effect of reducing the amount of theindemnity that the employee can receive under the general rules of law.

III. Termination of Employment

Generally speaking, the employment relationship can end in one of the following ways:

by the resignation of the employee;

the death of the employee and, in certain cases, the death of the employer;

the agreement between the parties to terminate the employment contract;7

force majeure, economic difficulties, in very exceptional circumstances, can be likened to aforce majeure event;

8

the expiry of a fixed-term contract terminates the relationship between the parties, as ofright,

9except under special conditions providing for the renewal of the employment contract

or simply by tacit renewal;

the retirement of the employee;

by the employer for “just cause” / “serious reason;”

by the employer “without cause” (“serious reason”) by providing advance notice oftermination or pay in lieu of notice. Note that according to Section 124 of the ARLS “anemployee credited with two years of uninterrupted service in the same enterprise who doesnot believe that he or she has been dismissed for a good and sufficient cause may present acomplaint in writing to the Commission des normes du travail.” A similar provision in the CLCapplies to employees credited with one (1) year of service of a federal undertaking;

10

3 R.S.Q., c. N-1.1.4 R.S.C. 1985, c. L-2.5 Dubé v. Volcano Technologies inc., REJB 2001-23547 (S.C.).6 S.Q. 1991, c. 64.7Article 1439 of the CCQ8 Holbrook v. Gordon, [1968] S.C. 37. Also see Surveyer, Nenniger & Chênevert Inc. v. Thomas, 1989 CanLII 753 (QCCA) – absence of proof by the employer of the irresistibility of a recession, even if it proved to be unforeseeable. However,reduction of compensation in lieu of notice, due to the employer’s financial difficulties in Michel v. Welding Institute ofCanada/Institut de soudage du Canada, D.T.E. 98T-653 (S.C.).9 Articles 1517 and 1671 of the CCQ10 Section 240 of the CLC

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by “constructive dismissal” in which the employer makes a fundamental change to theemployment contract without the employee’s consent.

Here, we will mainly discuss the termination of an employment contract in a non-union work environment andpractical aspects to consider at the time of termination without serious reason.

IV. Termination Without Cause

If the employer wishes to terminate employment on a “without cause” basis (other than in the case of a fixedterm contract), it has to provide written notice or equivalent pay in lieu of notice (also known as “délai decongé,” or “notice of termination”).

The “rules” concerning termination without cause potentially are derived from three sources:

the express conditions of the employment contract, as the case may be (written or verbal);

the application of the labour standards legislation; and

the implied terms of the contract of employment imposed by the CCQ.

In addition to the limits imposed, notably by Sections 124 of the ARLS and 240 of the CLC, all of thesesources must be considered when a without cause termination is planned.

V. Notice of Termination

The employee benefits from a reasonable time to find a new job. This concept is not based on enrichment,but on prevention.

Practical considerations of notice of termination:

an employee may not refuse to work during the notice period without this refusal resulting inthe loss of the right to claim an indemnity;

an employee may not require a compensatory indemnity when he resigns freely andvoluntarily. The employer bears the burden of proof of resignation. Thus, the employer willhave to prove the resignation to discharge the obligation of giving the notice or the benefit inquestion;

the employer may prefer simply to pay a compensatory termination indemnity in lieu of noticeof termination.11

1. The Provisions of the ARLS and the CLC

The elements relevant to termination of employment are found in Sections 82 and 83 of the ARLS and 230 ofthe CLC. These are public order provisions and the parties may not derogate from them, unless protection isoffered that is superior to the protection proposed by the ARLS

12or the CLC. These Sections only set a

minimum public order standard. The employee may claim more if this minimum does not represent a

11 Château inc. (Le) v. Niro, 2009 QCCA 2314.12 Loiselle v. Parentèle de Laval inc., 2010 QCCRT 148, at paras 53-56.

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reasonable indemnity or notice in the given situation. However, for these Sections to apply, the person whoinvokes them must meet the following conditions:

be an employee within the meaning of Section 3 of the ARLS or an employee within themeaning of Section 3 of the CLC;

13

have completed three months of continuous service;

the fixed-term employment contract has not expired;

have not committed a serious fault;

the termination of the employment contract does not result from a force majeure event.

The notice of termination:

must be given to the employee in writing under Section 82 of the ARLS14

or Section 230 ofthe CLC;

must be dated;

must clearly and unequivocally identify the employee’s last day of work.

The notice is not effective if the employee works after the date the employment was supposed to end. Thenotice is also not effective if it contains any statements which suggest the employment may not end, such as“We hope that our business will pick up and your employment will not end.”

2. The Provisions of the CCQ

Article 2091 of the CCQ creates the obligation to give notice of termination. It applies both to the employerand to the employee, depending on who instigates termination of the employment relationship.

The public order nature of the notice is materialized by Article 2092 of the CCQ. Its consequence is that theemployee may not waive his right to claim fair and equitable compensation for any injury he suffers whereinsufficient notice of termination is given, despite any contrary provision in the employment contract.

Practical considerations regarding the notice of termination under the CCQ:

do not confuse severance pay with pay in lieu of notice of termination. Severance pay is apayment in recognition of the years worked for the company, while pay in lieu of notice is dueonly in default of notice of termination of the employment contract;

15

an employer who dismisses without cause has the duty to give all the pecuniary benefitsaccumulated during the period of the notice of termination to the employee in question.

16

in the case of multiple terminations at different points in time, the employer must assess thenotice of termination only from the time of the last employment contract. Thus, the previous

13 Prince Rupert Port Authority, 2002 CanLII 53124 (CIRB), at paras 69-73.14 Québec (Commission des normes du travail) v. Chantiers Davie Ltée, 1987 CanLII 1004 (QC CA).15 Walker v. Norcan Aluminium inc, 2010 QCCS 3757.16 Gilman v. Fieldturf Tarkett Inc., 2012 QCCS 1429.

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years worked by the same employee, for which he has already obtained an indemnity or anotice, are not taken into account;

17

fixed-term employment continued as a contract with an indeterminate term cannot beconsidered in its entirety for the calculation of a reasonable notice period. Only the periodelapsed after the fixed-term contract expired must be taken into account.

18

VI. Termination With Notice

The legal obligation is to give notice before terminating an employee’s employment. Provided the amount ofworking notice meets the requirements of the employment standards legislation, the contract of employmentor civil law (depending on which is applicable), no “pay in lieu of notice” need be paid. It is important that oncenotice is given, the employer cannot unilaterally alter any terms and conditions of employment withoutcreating the risk the employee will claim a constructive dismissal has occurred.

In considering whether to give working notice rather than pay in lieu, you should consider the followingfactors:

whether the employee has work to finish;

the degree of vulnerability of the employer if the disgruntled employee remains at work,considering the degree of involvement with co-workers, customers, clients or suppliers;

whether the departure will be smoother if the employee is permitted a “transition” period tomake announcements and delegate responsibilities; and

whether the employee possesses significant confidential information which must be secured.

VII. The Required Notice Period

The starting point of the notice of termination is the date when the employee is warned clearly that he will losehis job on a specified date.

19

1. The Minimum Amount of Notice or Pay in Lieu Required by the ARLS is:

none, if the employee is credited with less than three months of uninterrupted service;

one week if the employee is credited between three months and 12 months of uninterruptedservice;

two weeks, after 12 months of uninterrupted service;

four weeks after five years of uninterrupted service;

eight weeks after 10 years of uninterrupted service.

17 Trudeau v. Abitibi-Consolidated inc., 2006 QCCS 5830.18 Vision Globale AR ltée v. Harel, 2008 QCCA 907.19 Constantin v. Recyclage d'aluminium Québec inc., 2010 QCCQ 2993.

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2. The Minimum Notice or Pay in Lieu of Notice Required by the CLC20 is:

no notice, if the employee has completed less than three months of continuous service;

at least two weeks’ notice in other cases.

Moreover, an employer under federal jurisdiction who terminates the employment of an employee who hascompleted twelve consecutive months of continuous employment by the employer shall, except where thetermination is by way of dismissal for just cause, pay to the employee the greater of:

21

two days wages at the employee’s regular rate of wages for his regular hours of work, foreach year of service;

five days wages at the employee’s regular rate of wages for his regular hours of work.

3. The Notice Period Under the CCQ:

The purpose of notice of termination is to allow the employee to have reasonable time to find equivalentemployment without incurring economic losses. This does not mean that notice of termination mustcorrespond to the time necessary for the employee to find a new position on the job market.

22

The notice period is generally between the statutory minimum and a maximum limit, which has long beenfixed at 18 months in Québec, but which is tending to increase. The previous decisions are benchmarks,serving as guidelines in the establishment of adequate notice. However, the previous decisions can only beindicative, because they vary according to the facts. The Québec Court of Appeal (QCCA) thus will showgreat reserve and deference in intervening to change the term determined by the trial judge.

23

To determine the notice period required by the CCQ, the courts consider the following factors, in particular:

the employee’s age;

the employee’s length of uninterrupted service:

Care must be taken not to confuse the employee’s work experience and thetime worked with the company. Only the second factor is taken into accountto determine reasonable notice.

24

the employee’s position:25

It is common knowledge that the courts have often resulted to the rule ofone (1) month’s notice per year of service. This rule is applicable toemployees who hold senior management positions (our underlining). Forother employees, there is also the rule of two (2) weeks’ notice per year of

20 Section 230 of the CLC21 Section 235 of the CLC22 Transforce Inc.v. Baillargeon, 2012 QCCA 1495 [Transforce inc.].23 Ibid.24HMI Industries Inc. v. Santos, 2010 QCCA 606.25 Oyama v. IBM Canada Ltd., 2011 QCCS 1078.

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service. These principles should serve as a guide and not as an absolutemeasure to establish reasonable notice.

26

the employee’s level of compensation;

the availability of similar employment having regard to the employee’s experience,qualifications and training;

whether the employee was induced or enticed to leave secure employment to acceptemployment with the employer,

27and

the timing and manner of termination.

In general, the notice period will be longer when the employee is older, when he has many years of service orwhen he holds a specialized or unique position. This is mainly explained by the fact that an employee whopossesses one or more of these characteristics generally has more difficulty finding a similar job with benefitsequivalent to those from which he benefited within the context of the lost job.

It is important to mention that the pay in lieu of reasonable notice of termination must not account for theemployee’s wealth. The employee has a right to reasonable notice of termination, regardless of his financialposition.

28

Here are some examples from the jurisprudence concerning management personnel:

A middle manager who is terminated after more than 10 years of service could beawarded up to 12 months’ notice. A middle manager who has a few years of servicewould be granted about six months’ notice; finally, it must be recognized that amanagement employee over 50 years of age who has completed 20 years ofservice will be granted at least 12 months of pay, regardless of his managementposition.

As for a senior manager, if he has a few years of service, he could be granted eightto 12 months’ notice, according to the most recent jurisprudence in Québec.However, contrary to the jurisprudence of other provinces, the Québec courtshesitate to grant more than 12 months’ notice. The indemnities granted since theearly 2000s show an upward trend, however. One can ask whether this is thebeginning of a new broadening of the interpretation.

Finally, it must be recognized that a management employee over 50 years of agewho has completed more than 20 years of service will be granted at least12 months’ pay, regardless of his management position.29

In conclusion, there have been major changes in Québec law over the past few years, which have beeninfluenced by the decisions of other Canadian provinces. The trend in the jurisprudence is to increase thenotice periods required of an employer unilaterally terminating an employment contract. Moreover, in 2012,notice of 12 to 18 months, capped at 24, is no longer unusual for an employee who has worked for many

26 Dumerlin v. Ipsos-Reid, s.e.c. (Ipsos-Direct), 2008 QCCQ 7315, at para. 26 [TRANSLATION].27 Basra v. Propriétés Belcourt inc., 2012 QCCS 1143.28 Transforce Inc., supra note 20.29 Clément Gascon, Le congédiement en droit Québécois en matière de contrat individuel de travail, 3rd ed., Montréal, Éditions Yvon Blais, pp.5-38.2 to 5-39. [TRANSLATION]

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years and who performs high-level duties with the company. In a similar vein, it is noted that employees whodo not have many years of service with a company are being granted significant notice periods.

In a recent QCCA decision,30

an executive vice-president of a major North American corporation, dismissedunder special circumstances, was entitled to 11 months’ notice of termination, despite the fact that he hadheld the position only a few months. In its judgment, the QCCA presented an interesting analysis of thedifferent relevant criteria to determine the notice period in this instance:

[61] At 49 years of age, with his qualifications and experience, I consider that therespondent was at the apex of his career, which, apart from other criteria, works infavour of shorter rather than a longer notice period.

[62] Regarding the circumstances that led to his hiring, I remind the parties that therespondent’s days were numbered with his previous employer, Ratiopharm, Hisposition had just been abolished and if he had agreed to stay to ensure hissuccessor’s transition, he nonetheless would have had to leave his job before theend of 2006. Once again, this works in favour of a shorter rather than a longer noticeperiod.

[63] […] Thus, while it only took him six weeks to be hired by the appellant, theproceedings following his dismissal will have lasted more than one year. This factorworks in favour of a long notice period.

[64] To summarize, the respondent’s situation combines two criteria favouring a longnotice period and three criteria favouring a short notice period. But as JusticeBaudouin reminded us in Standard Radio Inc. v. Doudeau, “this does not involve astrictly mathematical calculation or a pure and simple accounting valuation.”

31

In an interesting point, the QCCA also considered the 18-month notice period from which the employeebenefited in the contract with his former employer to show that this reveals the duration of the notices given inmajor public companies.

However, it should be noted that in the past few months, the Québec Superior Court (QSC) rendered aninteresting decision to the effect that the employee’s situation must certainly be considered, but theemployer’s situation as well.

32The plaintiff, an employee with over 35 years of experience at one of the

employer’s plants and performing the duties of assistant manager, could have obtained 24 months’ notice oftermination according to the current trends, but was awarded 18 months instead. The QSC reached thisconclusion in view of the proven impact of a major crisis in the forest industry, and consequently for theemployer’s activities. It was in this context that the employer had to terminate the plaintiff’s services, withoutany apparent trace of bad faith.

VIII. Structuring the Termination Indemnity

The compensatory indemnity in lieu of statutory notice should normally be paid on the payday following thetermination of the employee’s employment. This payment is not subject to any minimization. Moreover, it isgenerally recognized that the termination indemnity provided by law is subject to the usual deductions atsource.

30 Transforce Inc., supra note 20 [TRANSLATION].31 Ibid.32 Bernatchez v. Commonwealth Plywood ltée, 2012 QCCS 2119.

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Termination indemnities that are specifically set out in employment contracts must be paid according to theterms of the contract. In general, this payment is not subject to any obligation to minimize, except whenexpressly mentioned.

When a compensatory indemnity in lieu of notice is paid, the employer must provide the employee with thesame compensation, the bonuses and most of the benefits from which the employee would have benefited ifhe had worked during the notice period.

33Therefore, in order to structure a termination indemnity proposal, it

is appropriate to consider several factors:

whether the employee typically earns commissions, bonuses, or overtime, and if so, whatcompensation for those items will be provided as part of the termination indemnity;

when benefits will end: note that short and long term disability typically cease on the last dayof active employment, while other health benefits are often continued for a certain period (forexample: a continuation of 30 days is provided at Sections 47 and 48 of the Act respectingPrescription Drug Insurance

34) – if you need information ask your broker or insurance

carrier);

whether the termination indemnity will be paid by lump sum or by salary continuance;

whether outplacement counselling will be provided;

how various monetary benefits will be treated, such as the car allowance, stock options,employee stock purchase plan or pension plan;

return of company property, such as a lap top, a computer, a cell phone, a company car,access cards or work files and copies thereof;

whether a reference will be provided, and if so, the terms of the reference; and

whether there are any particular factors you should consider in the timing and manner oftermination, such as whether the employee has recently been absent from work for medicalreasons, whether the timing of the termination will preclude the employee receiving a bonus,etc.

The letter confirming termination should include the following, if applicable:

confirmation of the last day of work;

confirmation of the last day of employment, if different;

confirmation of length of the statutory notice period and whether it will be satisfied by workingnotice, payment in lieu, or a combination of the two, as well as confirmation of the date bywhich it will be paid;

confirmation that outstanding salary and vacation will be paid and when;

confirmation of the date various benefits end;

33 Transforce Inc., supra note 20.34 R.S.Q., c. A-29.01.

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details of the right to convert group benefit coverage to an individual plan, necessarilyavailable for life insurance, the period in which such conversion must occur and who tocontact in this respect;

the amount of any additional termination, indemnities, and details of how it will be paid (forexample, lump sum or salary continuance) and whether the employee must sign a release;

whether a reference letter will be provided; and

whether the employee will be required to respect his obligation of loyalty and any applicablerestrictive covenants; and

the requirement to return all of the employer’s property to a specific person before a precisedate.

4. Salary Continuance or Lump Sum Payments

The termination indemnity may be paid by salary continuance for a defined period, with a provision that theemployee will receive a lump sum, often 50% of the balance of the salary he would have received betweenthe time he finds a job and the end of the salary continuance period. This mode of payment of the indemnity ismutually advantageous: on the one hand, if the employee finds another job quickly, the 50% lump sumpayment represents a windfall for the employee; while on the other hand, it reduces the risks for theemployer.

5. Tax Treatment of Termination Indemnity

In making termination indemnity proposals, an understanding of the tax consequences to the employee canassist in structuring them in a tax-friendly manner for the employee and tax-neutral manner for the employer.

A termination indemnity is normally treated as a “retiring allowance” under the Income Tax Act35

as itrepresents a payment to the employee in respect of the loss of employment. As a retiring allowance, onlyincome tax is deducted. The employer is not required to deduct Québec Pension Plan or EmploymentInsurance (EI) premiums. The income tax is deducted at a flat rate depending on the total of the retiringallowance. This rate ranges between 21% and 35%.

Prior to income tax being withheld, the employee is entitled to shelter portions of the retiring allowance fromincome tax by rollovers and contributions to the employee’s RRSP. The employee is entitled to contribute$2,000 per year or partial year of service prior to 1996 directly into his RRSP, regardless of the contributionroom available for the employee. The employee can also contribute $1,500 per year or partial year prior to1989 during which the employee was employed by the employer but no employer contributions were made onthe employee’s behalf to a pension plan or a deferred sharing plan or vested in the employee. In addition, anemployee can contribute the retiring allowance or part of it directly to the employee’s RRSP up to the unusedcontribution room available in the employee’s RRSP, upon presentation of appropriate evidence.

35 R.S.C. 1985, c. 1 (5th Supp.).

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6. Tax Treatment of Moral Damages

Although there is still some uncertainty as to whether moral damages are taxable, the courts have generallymaintained, for example in Stolte v. The Queen

36and Mendes-Roux v. The Queen,

37that payments made in

relation to mental distress are non-taxable windfalls.38

It is worth adding that damage payments on account ofdefamation have also been ruled to be non-taxable.

39

IX. Mitigation of Damages

It is often not well understood by employees that their entitlement to a termination indemnity could, if notresolved early, be subject to deductions for any income earned by the employee during what is found to bethe reasonable notice period. If the employee obtains alternate employment shortly after the termination ofemployment, the employee’s own efforts can significantly diminish the employee’s claim against an employer.This is a factor that employees need to be aware of and understand, particularly, so that they can appreciatethe potential of a lump sum severance proposal being paid at the time of termination of employment. If theemployee’s job skills are easily transferable and there is a demand in the market for the employee’s skills, alump sum severance proposal could represent a significant windfall for the employee if he obtains alternateemployment quickly. It is important for the employee to understand this, as often the employer lump sumproposal is discounted to reflect the potential for windfall for the employee.

Another mitigation issue which the employee needs to understand is the statutory obligation to repayEI benefits received during the notice period. If an employee does not accept a termination indemnity andsubsequently receives EI benefits, if and when a termination indemnity is agreed upon or awarded, any EIbenefits received by the employee during the notice period must be deducted by the employer and remitted toCanada Revenue, however, the Federal Court of Appeal in R. v. Plasse

40ruled that the damages paid for

waiving an employee’s right to reinstatement do not constitute compensation for the purposes of calculation ofthe reimbursement of excess employment insurance benefits.

41

X. Conclusion

It is advisable to seek legal advice prior to terminating employment for or without cause. Such advice will helpto ensure it is fair and reasonable and to ensure that any termination package is reasonably understood bythe employee and that, if accepted, it will completely eliminate any future claims in anyway related to theemployment relationship with the employee.

36 [1996] 2 CTC 2421.37 98 UDTC 57.38 Marquette, Charles P., « Cessation d’emploi et indemnité de départ – Aspects fiscaux, dans L’A-B-C des cessations d’emploi et des indemnitésde départ», Montréal, Barreau du Québec, 2008, at p .43-45.39 Bedard v. MNR, 91 DTC 573 (TCC).40 2000 CanLII 16290 (FCA).41 Charles P. Marquette, « Cessation d’emploi et indemnité de départ – Aspects fiscaux, dans L’A-B-C des cessations d’emploi et des indemnités dedépart», Montréal, Barreau du Québec, 2008, at p. 60.

Human Rights: the Yearin ReviewRachel Solyom and Audrey Lévesque

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Human Rights: the Year in ReviewI. Introduction

The Charter of Human Rights and Freedoms (Charter) has had a very considerable influence onemployer-employee relations. Since 1975, human rights have generated abundant and highly variedjurisprudence.

II. Absenteeism Policies

Absenteeism can have a considerable impact on productivity. This having been said, it is understandable for

an employer to wish to exercise some control over its employees’ absences. Thus, the employer may come to

establish various policies in order to limit the absenteeism rate. However, at what point do the measures

taken by the employer to limit its employees’ absenteeism become discriminatory?

1. Analysis of the Case Commission des droits de la personne et des droits de lajeunesse c. Société des casinos du Québec inc. (Société des casinos)1

1.1 The Decision

In this case, the Commission des droits de la personne et des droits de la jeunesse (Commission) accused

the employer of having applied a discriminatory performance evaluation policy regarding some of its

employees. More specifically, the policy indicates that the employees holding the position of chef de table

(table games manager) will be penalized when they are absent from work due to illness, regardless of

whether these absences have been authorized. The chefs de table are awarded a performance score at the

end of each year. Thus, the more they are absent during the year, the lower their score will be. This score

eventually will have an impact on their chances of obtaining a salary increase. The compensation of the chefs

de table thus depends directly on their annual performance and their attendance at work, without any

distinction. In fact, handicapped chefs de table have no chance of obtaining treatment adapted to their special

situation and cannot be absent more often than a chef de table without a handicap.

The discriminatory element in this instance is that no distinction is made in the application of the policy. The

Commission therefore asked that the clause regarding the evaluation policy be declared null and void.

The Human Rights Tribunal (Tribunal) concluded that the clause in question is null and void. In this regard, it

indicated the following:

Clause 6 b) of the “2002-2003 Performance Evaluation” policy had the effect ofdiscriminating on the basis of handicap by penalizing the attendance record of chefsde table whose absences for illness (code 30) had been authorized in advance bythe defendant.

2

1 2011 QCTDP 17.2 Ibid., at para. 3. [TRANSLATION]

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1.2 Practical Consequences of This Decision

The case Société des casinos clarifies the notion of equality in the workplace concerning absenteeismpolicies. It provides the following lessons:

It is sometimes necessary for differentiated measures and reasonable accommodations to be put in place inorder to ensure that a policy is equal for all employees. An absenteeism policy treating all employeesidentically will not necessarily be considered non-discriminatory within the meaning of the Charter. On thisissue, the Tribunal indicated:

[Translation] Contrary to formal equality, the concept of real equality involvesdifferentiated measures, known as reasonable accommodation, sometimesnecessary for its full achievement, which are an integral part of the right to equality,but subject to undue hardship.

3

If an employer wishes to prioritize a policy treating all employees in the same way, regardless of handicap, itwill have to prove that the establishment of a differentiated evaluation would cause it undue hardship. On thissubject, the Tribunal indicates:

[Translation] Moreover, the Société did not prove that it would have suffered unduehardship in offering reasonable accommodation measures that would have involvedindividualized monitoring of the chefs de table exhibiting an absenteeism problem,instead of the generalized policy devoid of distinction that it imposed on this entireclass of employees.

4

The reasonable accommodation measures must be included in the policies at the time they are drafted.Employers who design standards for the workplace must be aware of the differences among individuals andensure that they take the necessary measures so that all employees are on an equal footing. The Tribunalconcluded that consideration by the employer of its employees’ health status to remedy an absenteeismproblem is based on a negative prejudice. This prejudice is sufficient to constitute a handicap within themeaning of the Charter.

By basing a significant portion of the employees’ evaluation on their absence and by awarding a lowerperformance score to employees who are absent more due to illness during the year, the employer createsnegative prejudices. If, moreover, the employer causes the salary progression to depend on the absenteeismrate, regardless of the cause of absence, this sends a message to the employees with more fragile health thattheir contribution to the company is smaller.

III. Employee Privacy

This decisions deals with the question of dismissal due to false declarations at the time of hiring. What is thedegree of gravity required for false declarations to justify an employee’s dismissal?

3 Ibid., at para. 81. [TRANSLATION]4 Ibid., at para. 74. [TRANSLATION]

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2. Analysis of the Case Syndicat national des travailleuses et travailleurs des pâtes etpapiers de Crabtree inc. (CSN)5

2.1 The Decision

In this case, the investigation revealed that the employee had made false declarations at the time of his hiring.More specifically, in his hiring questionnaire, he had lied regarding his medical history. For this reason, theemployer suspended the griever in order to conduct an investigation and finally dismissed him. A grievancecontesting the griever’s dismissal thus was filed.

The union maintained that the questions appearing in the questionnaire were discriminatory and that theywere unrelated to the position sought. The union added that these questions are prohibited under Sections 10and 18.1 of the Charter. The union also affirmed that termination cannot be justified, given that the falsedeclarations were made before the existence of the contract of employment.

The Arbitration Board (Board) concluded that the employer would not have hired the griever if it had knownthis information. The griever admitted that he had made false declarations regarding his medical history.Secondly, the griever’s false declarations were grave enough for the employer to refuse to hire him: the Boardspecified that the griever could have committed violent acts if he had experienced frustration. Indeed, eventhe employer’s physician affirmed that he would not have recommended the griever if the griever had told thetruth. The employer’s occupational health and safety obligations also justified the dismissal of a personpotentially dangerous to other employees.

6

The Board thus concluded that the bond of trust between the employer and the employee was manifestlybroken and that this justified dismissal.

3. Practical Consequences

This decision confirms that lying about one’s medical history may be a reason for dismissal. This case evenindicated that severing the employment relationship due to the employee’s false declarations regarding hismedical history is much more than a disciplinary measure: rather, it constitutes a cancellation of the contact ofemployment. To this effect, the Board added:

The falsification of health statements before being hired is a very serious fault. Thedismissal is generally upheld when the false declaration is proved.

7

Once the employer proves that he would not have hired the employee if he had known the truth, the Board isno longer concerned about knowing the exact timing of the false declarations.

When the griever leads the employer to believe that he had all the qualifications required to satisfy therequirements of the position, whereas in reality, he may be a danger to himself and to other employees, theemployer will never be required to reinstate the employee, even if the dismissal is declared unjustified.

In assessing the gravity of the employee’s false declarations, the arbitrator does not have to seek to knowwhether the employer took reasonable accommodation measures before dismissing the employee. Its onlymission is to determine whether the employer would have refused to hire the employee if it had known thetruth from the outset.

5 D.T.E. 2012T-109 (A.T.) (Me André Matteau)6 Civil Code of Québec, Section 2087.7 2011 QCTDP 17, supra, note 5, at para. 91. [TRANSLATION]

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Asking questions about the employee’s medical history in the hiring questionnaire is not discriminatory. Suchquestions are considered non-discriminatory by Section 20 of the Charter and by Section 9 of the Actrespecting the protection of personal information in the private sector.

8Moreover, the fact that the employee

exhibits psychological problems and not merely physical disabilities does not affect the possibility for theemployer to ask such questions in the hiring questionnaire. To this effect, Arbitrator Matteau indicated:

Asking a candidate questions about a previous hospitalization or hospitalizationsand their causes, about medical monitoring, or about taking medications and drugs,seems reasonable in my opinion, probably for any type of employment. Indeed, theintroductory text of medical questionnaire E-2 clearly indicates its purpose.

9

IV. An Employee’s Criminal Record

When an employee has a criminal record and seniority, it becomes a delicate matter to dismiss him if he nolonger fulfills the qualifications required for the position. In such a situation, can the employer dismiss itsemployee without this being unreasonable or unjustified?

Analysis of the Case Association des chauffeurs de Transport Couture et TransportCouture & Fils (M. Tim)10

1. The Decision

The griever was a truck driver working for a general freight transportation company in Canada and theUnited States. In the past, he committed a criminal offence for which he obtained a pardon. All these factswere known to the employer. Due to his criminal record, the griever could not travel in the United States.When he was called on to travel in that country after the sale of the company to a new buyer, he was refusedpassage. Following this event, the griever was dismissed on the pretext that he no longer fulfilled one of theemployment criteria, given that the driver had to be able to make “long-haul” trips. The employer alsosubmitted that this was an administrative and not a disciplinary dismissal.

The union filed a grievance to contest the dismissal. The union alleged that the employee was transparentconcerning his criminal record. It also added that, since the reorganization of the company, the employer hadnever asked him to cross the U.S. border. Finally, the union argued that the employer showed discriminationin employment, having accommodated another employee for the same reasons. For all these reasons, theunion considered that the employer showed discrimination against the griever, thus violating Section 18.2 ofthe Charter.

The Board concluded that the dismissal was justified and that the employer had not discriminated against theemployee. It mentioned that in no case must the employer be held responsible for the refusal of theUnited States to consider the pardon and to allow the griever’s passage to the country. The employer is notbound to accommodate its employee constantly, especially since it hired the griever despite the fact that hehad a criminal record. Before dismissing him, the employer sent the griever a notice of compliance, indicatingthat he had to comply with the requirements of the position and that, to do so, he had to procure a cardallowing him to cross the U.S. border. Moreover, the employer assisted the griever in the process to obtainthis card and, for a long time, avoided assigning him trips to the United States so that he could do his job.

8 R.S.Q., c. P-39.1.9 Ibid., at para. 78. [TRANSLATION]10 D.T.E. 2012T-213 (A.T.) (Me Denis Provençal).

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2. Practical Consequences

An employer’s decision to terminate the employment of an employee with eleven years of seniority for thesole reason that he can no longer make long-haul trips to the United States is good and sufficient cause ofdismissal. However, it is important that the employer’s decision be made in accordance with the collectiveagreement. In this case, the accommodation of a person with a physical impairment was stipulated in thecollective agreement. Nonetheless, the principle was different for accommodation of a person who cannotcross the U.S. border due to a criminal record. This special case did not appear in the collective agreement.Concerning the fact that the employer is not responsible for the fact that other countries, such as theUnited States, do not recognize the pardon or rehabilitation of an individual, the arbitrator indicated thefollowing:

If the griever cannot engage in transportation in the Long-Haul Division because hecannot enter or circulate in U.S. territory, he no longer meets the requirements toperform the task of driver in this division. Moreover, the collective agreement did notallow him to change divisions except in case of creation of a new route or a shortageof work […] all the drivers of a Long-Distance Division are subject to the samerequirements and must qualify to enter and circulate in U.S. territory. Thisrequirement of the employer is directly related to the nature of the work to beperformed and cannot be qualified as capricious or unreasonable.

11

The employer will not be considered to have shown discrimination against an employee with a criminal recordwhen the reason for dismissal does not concern the employee’s criminal record directly. In this case, theemployer hired the griever although it was aware of his criminal record. It thus did not discriminate due to thegriever’s criminal record. Then, for the entire term of the griever’s employment, the employer alwaysattempted to accommodate him by assigning him to trips not going to the United States. Indeed, aware that itwas impossible for the griever to cross the U.S. border, the employer supported and assisted him in applyingfor a card for access to the United States. In assessing the contestation of the dismissal, the arbitratorconsidered all these factors.

This case shows that an obligation to have all the qualifications required for a position is not discriminatory orarbitrary if it is applied to all employees without exception. While the griever was still employed, the companyfor which he was a driver was acquired by another company. Then, due to this reorganization, the conditionwas imposed on all drivers that they be able to make long-haul trips to the United States. Thus, given that thegriever was not the only employee to be have been subjected to the new condition, the Board concluded thatthere was no discrimination. Moreover, the reorganization of the transportation divisions within the context ofthe new acquisition was carried out with the agreement of the union.

In this case, the employer’s proof was that it is appropriate to make a distinction between an administrativedismissal and a disciplinary dismissal. The employer affirmed that this was an administrative dismissal andthat the arbitrator therefore could intervene only in situations involving discrimination or abuse of power. Inthis case, the Board pointed out that it does not have the power to review the employer’s penalty. Its decision-making power is limited to upholding or cancelling the penalty imposed. Thus, the Board upheld theemployer’s decision.

V. The Question of Alcohol in the Workplace

The next decision concerns a current issue regarding the problems of alcohol in the workplace.

11 Ibid., at para. 35. [TRANSLATION]

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Analysis of the Case Commission des droits de la personne et des droits de lajeunesse v. Centre hospitalier universitaire de Sherbrooke12

1. The Decision

The plaintiff was an employee working as a dietary aide in a hospital. The employer dismissed him due to theeffect his alcoholism problems were having on his work. Following his dismissal, the plaintiff started therapyand closed treatment, in addition to completing a Diploma of Vocational Studies in the field of nutrition. Havingsolved his health problems, the plaintiff reapplied to the hospital four years later. At that time, the employersimply refused to consider his application. Thus, the complainant contested the employer’s refusal to considerhis new application and alleged that, by acting in this manner, the employer impaired his right to be treatedwith full equality, without any distinction based on the handicap caused by his alcoholism problems. Morespecifically, the plaintiff affirmed that the hospital employer violated Sections 10 and 16 of the Charter.

This case was an appeal of a judgment by the Tribunal. The Tribunal had dismissed a complaint underSections 10 and 16 of the Charter concerning a refusal to rehire the plaintiff, who had been dismissedpreviously due to alcohol problems. The Tribunal concluded that the employer, prima facie, discriminatedagainst the plaintiff’s handicap. However, the Tribunal did not consider that the employer had infringedSection 20 of the Charter. Refusing to rehire an employee dismissed due to absenteeism and a lack ofdiligence at work proved to be a justified employment requirement within the meaning of Section 20 of theCharter. Moreover, the basis of the employer’s reason for dismissal had been found valid by a grievancearbitrator; the griever’s grievance contesting his dismissal was dismissed. The same ground was invoked todismiss the plaintiff’s second application. Moreover, the Tribunal considered that it did not have the requiredpower to review the grievance arbitrator’s decision. The Tribunal considered that the breach of trust justifiedthe refusal to reconsider the plaintiff’s application and that this did not constitute discrimination within themeaning of the Charter.

The Québec Court of Appeal (QCCA) concluded that the Tribunal had not committed an error in law.

2. Practical Consequences of the Case

This case teaches the following lessons:

A refusal to rehire an employee who was dismissed for good and sufficient cause is justified if a grievancearbitrator rejected the contestation of the dismissal at the basis of the case and the same grounds are invokedto justify the refusal to rehire the employee concerned as were invoked in the dismissal. In this case, theplaintiff was dismissed due to a lack of diligence and alcoholism problems. His dismissal was recognized by agrievance arbitrator. He claimed that his former employer’s refusal to reconsider his candidacy wasdiscrimination due to a handicap, namely his alcoholism problems. However, the Tribunal concluded that it didnot have the power to review the arbitrator’s decision. Then, considering that the bond of trust had henceforthbeen broken with the employer, the employer had the right to refuse to consider his new application. Such anomission to accommodate will be considered reasonable if it is not determined arbitrarily. In this case, theemployer did not refuse to re-evaluate the candidate arbitrarily and thus did not discriminate within themeaning of Section 10 of the Charter.

The fact that an employee who had been dismissed for alcoholism problems that had impacts on the qualityof his work took therapy after his dismissal does not have the effect of forcing the employer to rehire him. TheQCCA, in this case, did not consider that new facts were involved, especially since the arbitrator had knownof the steps taken by the employee and had upheld the dismissal nonetheless.

12 2012 QCCA 306.

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VI. Language Requirements for Employees

Analysis of the Case Syndicat canadien de la fonction publique, section locale 1459and Centre jeunesse de l’Abitibi-Témiscamingue13

1. The Decision

In this case, the employer, Centre jeunesse de l’Abitibi-Témiscamingue, posted a position as a full-timelawyer for Ville de Val-d’Or. Since this youth centre serves an anglophone clientele, one of the requirementsof the position was that the employee be bilingual. To contest this requirement, the union filed an initialgrievance on the griever’s behalf. Then the position was awarded to an employee with less seniority than thegriever. The union therefore filed a second grievance to contest this decision by the employer. This grievancecalled for the griever to obtain the position. However, the real question in dispute remained the requirement ofbilingualism for the position.

The employer maintained that bilingualism is essential for the position sought, because the clients concernedare Anglophone and have a right to be served in their first language under the Act respecting Health Servicesand Social Services.

14It argued that the unilingualism demanded by the griever is an undue hardship,

especially since the duties of the lawyer position require a good knowledge of English. The employer admittedthat there is a possibility of resorting to the assistance of a translator, but that this makes the processneedlessly burdensome and is too costly an alternative. It also mentioned that obligations of bilingualism areimposed on it under the Youth Protection Act. Finally, it pointed out that such a requirement does notcontravene the collective agreement and that it is a justified employment requirement within the meaning ofSection 20 of the Charter.

The union affirmed that the employer was not convincing in its demonstration of the necessity of bilingualismas a requirement for the lawyer position. According to the union, this requirement would not respect thecollective agreement in addition to infringing Section 10 of the Charter and Section 46 of the Charter of theFrench Language (CFL).

The Board dismissed the two grievances filed by the union. First of all, it affirmed that the employer was ingood faith when it decided to adopt the standard contested by the griever’s union and that it adopted it for apurpose directly related to the quality of performance of the work. The Board also indicated that severalstatistics for the region proved the necessity for the employee to be bilingual. It considered that the griever’sdemand for unilingualism was an undue burden and indicated that the employer had not shown discriminationbased on the Charter.

2. The Practical Consequences of the Case

This case teaches the following lessons:

When a union files a grievance for an employee to contest a language requirement of the employer, theemployer has a very specific burden – to prove that it complies with Section 46 of the CFL. It must establishthat the language requirement goes beyond the framework of mere language preferences. In this regard,arbitrator Nadeau cited the case of Université de Montréal.

15

When an arbitration board must determine whether the use of a language other thanthe official language is necessary for the performance of the task and the proof

13 D.T.E. 2012T-9. (A.T.) (Me Denis Nadeau).14 Sections 15 and 348.15 D.T.E. 89T-278. (A.T.) (Me Jean-Guy Clément)

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shows that the knowledge of another language is necessary only for a portion of thetask as a whole, an arbitration board’s task is not to quantify the proportion of thetime that another language is used in relation to the use of the official language, butrather is to determine whether, for the performance of the task, necessarily as awhole, the use of another language, even when limited in time and number ofoccasions, is necessary for the precise purpose of performing the tasks devolvingon this position efficiently and normally.

16

For an employer to be able to impose a language qualification for a given position, it must ensure that theobject of the position is closely related to the performance of the duties in question. In this case, the lawyerposition required significant interaction with members of an Aboriginal community whose principal languagesare Cree and English. This having been said, a good knowledge of English was crucial for the purpose ofworking effectively and establishing goods relationships of trust with the clients.

The employer is no longer bound to wait for the unilingualism of the person occupying the position to causesignificant harm in various files before invoking an undue burden for the position, penalizing the smoothrunning of the institution. To this effect, Arbitrator Nadeau indirectly repeated the remarks of the Multanidecision

17:

I do not believe that it is necessary for the employer to be bound to wait for theunilingualism of the incumbent of the lawyer position at the Val-d’Or home base tocause harm in one or more cases in order to invoke an undue burden.

In a context where the incumbent of the position is required to be bilingual to ensure the smooth running ofthe cases and the institution, an employee’s seniority does not take priority over language qualifications todetermine who will obtain the position sought. In this case, the griever had more seniority than the personwho obtained the position. However, the person who was hired had the competencies required by the positionsought concerning the English language.

16 Ibid., pp. 15-16. [TRANSLATION]17 [2006] 1 S.C.R. 256. [TRANSLATION]

Labour Law andAmendments to theEnvironment Quality ActJacques Rousse and Michel Gagné

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Labour Law and Amendmentsto the Environment QualityActI. Introduction

Bill 89: An Act to amend the Environment Quality Act in order to reinforce compliance, which received assenton October 5, 2011, substantially amended the Environment Quality Act (EQA). In addition to a substantialnumber of changes related to protection of the environment, Bill 89 introduces changes concerningcompanies in their interactions with their directors and officers.

On the one hand, the EQA provides that civil and penal liability of directors and officers may be engaged forany violations of its provisions. On the other, the EQA requires that companies disclose certain personalinformation regarding their directors and officers.

II. Civil and Penal Liability of Directors and Officers

The first significant consequence of the changes to the EQA concerns the civil and penal liability of officers.

1. Civil Liability

Under Section 115.50 of the EQA, the directors and officers of a legal person that has defaulted on paymentof an amount owed to the Minister under this act or the regulations are jointly liable with the legal person forthe payment of the amount, unless they establish that they exercised due care and diligence to prevent thefailure which led to claim.

Therefore, any director and officer potentially may be affected by any claim of the Minister, including:

costs incurred by the Minister following default in compliance with an order (Sections 31.43, 113, 114and 114.1 of the EQA);

characterization and rehabilitation costs;

costs of demolition, restoration of the site and implementation of compensatory measures;

restoration costs following a penal offence (Section 115 of the EQA); and

costs incurred to prevent or control an emission of contaminants, costs of collection of contaminants,cleaning or decontamination (Sections 115.0.1 and 115.1 of the EQA)

2. Penal Liability

Under Sections 115.39 and 115.40 of the EQA, when a legal person or its agent, mandatary or employeecommits an offence under the EQA or its regulations, its directors or officers are presumed to have committed

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the offence, unless they establish that they exercised due diligence and took all necessary precautions toprevent the offence.

Several points arise from these two provisions:

the reversal of the burden of proof: the necessity for the directors and officers to establish that theyexercised due diligence by preponderance of probability;

the unique liability regime: Section 115.40 of the EQA does not require any participation orknowledge; and

the absence of principle of distinct juridical personality.

III. Personal Background of Directors and Officers

The second significant consequence of the new EQA for directors and officers is that it obliges them todisclose personal information in order to comply with certain provisions of the new act.

Thus, under Sections 115.5 to 115.12 of the EQA, the applicant or the holder of any authorization, approval,permission or attestation or any certificate or permit granted under the EQA must, as a condition of issuance,maintenance or renewal of such authorization:

provide any declaration or information, any document required by the government or the Minister,particularly regarding penal (fiscal or environmental) offences or indictable offences of which one ofits directors, officers or shareholders

1has been convicted, if the applicant or the holder is a legal

person.

Sections 115.5 and 115.7 of the EQA grant the government discretionary authority to refuse to issue or renewan authorization certificate, or to amend, suspend or revoke such a certificate if, in the case of a legal person,one of its directors or officers

has, in the last two years, been convicted of an offence under the E.Q.A. or its regulations; or

has, in the last five years, been convicted of an offence under a fiscal law, an indictableoffence connected with activities covered by the certificate or an indictable offence underSections 467.11 to 467.13 of the Criminal Code (participation in the activities of a criminalorganization).

Consequently, companies and their directors and officers are henceforth required to disclose personalbackground by completing mandatory declarations upon the issuance, amendment, maintenance or renewalof government authorizations.

On this basis, two questions regarding employment law may arise:

Is it possible for companies to deploy mechanisms capable of identifying the personal background ofcandidates for director and officer positions before their appointment or hiring?

1 For the application of these sections, “shareholder” refers exclusively to a natural person who holds, directly or indirectly, shares that carry 20% ormore of the voting rights in a legal person that is not a reporting issuer under the Securities Act (section 115.9 (1)1) of the EQA)

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It is possible for companies to deploy mechanisms capable of being informed of all situationsinvolving directors and officers in office who could expose the company to a risk regarding theobtaining, maintenance or renewal of the authorizations they need under the EQA?

1. Introduction to Protection of Personal Information

A person’s personal background is personal information within the meaning of the Act respecting theProtection of Personal Information in the Private Sector (APPIPS).

2Under Section 4 of the APPIPS, any

person carrying on an enterprise may, for a serious and legitimate reason, establish a file on another person.

However, Section 5 of the APPIPS tells us that any person collecting personal information to establish a fileon another person may collect only the information necessary for the object of the file.

Section 11 of the APPIPS also mentions the obligation for every person carrying on an enterprise to ensurethat any file held on another person is up to date and accurate when used to make a decision in relation to theperson concerned.

2. Justification for the Collection of Personal Information: the BusinessRelationship

The jurisprudence tells us that a company is justified in collecting information on a person when it maintains abusiness relationship or a legal relationship with that person. It is therefore our opinion that, due to theexistence of such a relationship between a company and its officers and directors and the consequences towhich the company is exposed under the EQA, it has a serious and legitimate interest in establishing a file onthem.

3. The Personal Information That Can be Collected: the Criterion of Necessity

A company will be justified in requesting and/or collecting only the necessary information. According to thejurisprudence, the word “necessary” must be interpreted restrictively, that is, it must include indispensable,essential or primordial information and exclude convenient, useful, advantageous or expedient information.

Consequently, and only for the purposes of application of the EQA, the company may request and collectfrom its directors and officers only the personal background expressly identified in Sections 115.5 and 115.7of the EQA.

However, it is very clear that in the course of their activities, some companies may be subject to stricter andbroader legal and/or regulatory requirements than the EQA requirements. Thus, it is possible that thedirectors and officers of certain companies, such as public companies, are required to disclose other personalbackground information.

4. Personal Information That may not Be Obtained According to the Criterion ofNecessity

Subject to the rules applicable to public companies, a company may not require that its directors and officersdisclose personal background information not expressly identified in Sections 115.5 and 115.7 of the EQA

2 Note that the Personal Information Protection and Electronic Documents Act, which applies to federal works, undertakings or businesses, containssimilar provisions and that our conclusions remain the same (see sections 2 (1), 5 (3) and 4.4 of Schedule 1 of this Act).

Note that the Act respecting Access to documents held by Public Bodies and the Protection of Personal Information, which applies to public bodies,including school boards and health or social services institutions, contains provisions to the same effect and that our conclusions remain the same(see sections 53 and following, 64 and 65.1 of that Act).

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For example, a company that insists on knowing the entire the judicial record of its directors and officerswould contravene their right to privacy within the meaning of the Civil Code of Québec and the Charter ofHuman Rights and Freedoms (Charter).

3Also, a company does not have to know the judicial record unrelated

to the position held. Indeed, Section 18.2 of the Charter prohibits an employer from dismissing or refusing tohire a person owing to the mere fact that this person was convicted of a penal or criminal offence, if theoffence was in no way connected with the employment or if this person has obtained a pardon for the offence.

The jurisprudence indicates that an invasion of an employee’s privacy may be permitted only to the strictextent and limit of what is necessary to protect the company’s legitimate interests.

For example, an Arbitration Board (Board) had to rule on the question of whether the employer’s policy, whichobliged applicants and new employees to sign a pre-employment or employment consent form, providing forthe company’s right to perform all the checks it considered appropriate, was abusive and violated their right toprivacy. In this case, the Board concluded that the form adopted during employment was drafted too broadlyand that only the credit and judicial record checks were justified by the nature of the business.

4The Board

mentioned that it would be abusive for the company to use the objective of security or probity to authorizeitself to perform all the checks it considered appropriate regarding an employee.

More generally, the jurisprudence teaches us that invasion of an employee’s privacy must be justified byserious considerations, such as the danger he causes to others, the risk of accident, or the fear theirreparable action will be committed.

5

5. In the Event of Refusal to Provide the Personal Information Requested

Although the new provisions of the EQA do not require companies to verify the personal background of theirdirectors and officers, they may involve new requirements that companies could be justified in inserting intheir contracts due to the consequences to which they are exposed under the EQA. Thus, the company couldbe justified from now on to require, as a condition of employment of an officer or of maintaining a director inoffice, that the officer or director has not been or will not be convicted of an offence listed in Sections 115.5and 115.7 of the EQA. But what about directors and officers who refuse to provide the personal informationrequested?

In a recent decision,6

the Board concluded that a school transportation company’s policy of requiring itsdrivers to sign a declaration regarding their judicial record and consent to verification was valid and compliedwith the prescriptions of the Education Act (Act).

7The amendments made to the Act granted school boards

the power to ask persons working with minor students and who are regularly in contact with such students toprovide a declaration regarding their judicial record. In this case, this was clearly a requirement of the Act.The Board concluded that the employer’s decision to request this information from its drivers was based onthe obligation to offer protection and safety to a vulnerable minor clientele and that this transcends the drivers’right to privacy.

Concerning the driver’s right to refuse to give his consent to verification of his judicial record by the company,the Board expressed the following position:

3 Civil Code of Québec, sections 3, 35, 37. Charter of Human Rights and Freedoms, sections 4 and 5.4 Syndicat des travailleurs et travailleuses de Loto-Québec and Loto-Québec (union grievances), D.T.E. 91T-704 (T.A.), (Me André Rousseau).5 Fraternité des policiers de la Ville de Ste-Thérèse v. Ville de Ste-Thérèse, D.T.E. 90T-1050 (T.A.), page 20, (Me André Rousseau).6 Autobus Transco (1988) inc. and Syndicat des travailleuses et travailleurs de Transco (CSN) (union grievances), D.T.E. 2010T-644 (T.A.), (Me

François Hamelin).7 R.S.Q., Chapter I-13.3.

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[83] The purpose of the consent required by law is to protect the driver who does notwish to disclose his judicial record.

[84] However, while the law authorizes a driver to refuse to give his consent and, inthis instance, to provide his judicial record, on the other hand, it does not allow himto escape the consequences of his refusal.

[85] Whatever the case may be, whether the driver who has a judicial recordrelevant with his employment accepts or refuses to give the employer his consent tocheck his criminal record, the legislator’s objective will be achieved: to exclude fromemployment as a driver any person who has a judicial record that could impair thesafety or integrity of minor students. Indeed, either this driver consents to declare hisjudicial record and risks losing his employment if this record is relevant to his duties,or he refuses and then loses his employment because he does not satisfy one of therequirements of the Act.

[87] In the case at bar, drivers have the right to refuse to disclose their judicialrecord, but they must know that if they refuse, they risk losing their employment. Tokeep their employment, they must therefore disclose their record, because theobligation to protect minor students prevails over the drivers’ privacy. However, thedrivers may always refuse to do so, with the resulting consequences.

[88] I understand the delicate and difficult position of the driver placed in such adilemma, but I also understand that the decision he made to become or remain aschool bus driver is incompatible with a judicial record that may impair the safety orintegrity of students and that, in such a case, he will have to find other employment.

[89] In the circumstances, the balance of inconvenience clearly tilts in favour ofprotection of the children rather than protection of the driver.

8

It is thus established that current or potential directors and officers have a right to refuse to provide personalinformation requested by the company but are obliged to accept the consequences of such refusal.

6. Conclusions and Recommendations Regarding the Collection of PersonalInformation

For the reasons mentioned above and subject to the comments made concerning public companies, thecompany may not require the directors and officers to disclose all of their personal background. For thepurposes of application of the EQA, it is recommended that companies, in their questionnaire or any othermeans of identification, only target the offences listed in Sections 115.5 and 115.7 of the EQA (RelevantBackground). These are found in detail in the form entitled “Declaration of the applicant or holder,” containingthe information required under Section 115.8 of the Environment Quality Act,

9which the company must

complete.

However, as already mentioned, it is possible that under other legal and/or regulatory requirements, thedirectors and officers are bound to disclose other personal background, thus justifying broader collection ofinformation by companies. This applies, in particular, to directors and officers of public companies. It is thuspossible that companies are already in possession of the information required by the EQA.

8 Ibid.[TRANSLATION]9 Note that the “Declaration of the applicant or holder” is valid only for a one-year period.

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Although most of the offences listed in Sections 115.5 and 115.7 of the EQA do not pose a problem regardingtheir interpretation, it is important to mention that it is currently impossible to give examples of what couldconstitute an “indictable offence connected with activities covered by the certificate.” No definition of thisexpression is present in the EQA, and the Explanatory Guide to complete the “Declaration of the applicant orthe holder” only defines the concept of “subject activities.”

10

Therefore, companies could be justified in requiring that applicants for positions as officers or directorscomplete a questionnaire in which the Relevant Background is set out and, in the course of their employmentor their term of office, require them to complete annual and/or ad hoc declarations with a view to updating thisinformation.

Any other mechanism for continuous disclosure of Relevant Background could be envisioned, and it issuggested that companies adopt a policy detailing the corporate requirements regarding personal backgroundand its disclosure and providing, in particular, for the consequences to which a director is exposed for refusingto provide information, making a false declaration or declaring Relevant Background.

Also, due to the consequences related to the filing of a declaration containing false information,11

companiesshould provide for a mechanism allowing them to verify the truthfulness of the information disclosed and keepthis information up to date. Since the proof of intention to make a false declaration is not expressly indicatedin Section 115.5(3) of the LQE, some companies could decide to settle for information disclosed by theirdirectors and officers without proceeding to verify this information on their own and hope to present a suitablediligence due defence that could satisfy the government. However, companies must be aware that byadopting this approach, they incur an increased risk.

IV. The Various Scenarios

This leads us to evaluate various scenarios depending on whether the directors and officers are candidatesfor a position or already in office.

1. Before Taking Office or Hiring

Considering the foregoing, a company could be justified in refusing to hire an officer or rejecting thenomination of a director who refuses to disclose Relevant Background and/or to authorize the company toperform such verifications. The conclusion is the same regarding a candidate who declares such personalbackground.

2. While in Office or While Employed

For the reasons explained above, it would be prudent for a company to do the necessary verifications toensure the truthfulness and accuracy of the information disclosed by the candidates. However, in the eventthat a company decides to settle for the declaration provided by the candidate and this proves to be a falsedeclaration, the company could be justified in terminating the contract due to the fact that an elementessential to the formation and/or maintenance of the contract was hidden.

10 “Subject activities are activities necessary for the purpose (of accomplishing the mission) of the natural person, the partnership or the legalperson.” [TRANSLATION]11 See section 115.5(3) of the LQE which provides that the Government may refuse to issue or renew an authorization certificate, or may amend,suspend or revoke such a certificate if, in the case of a legal person, one of its directors, officers or shareholders has filed a false declaration ordocument, or false information, or has distorted a material fact to have the certificate issued, maintained or renewed. Also note that if a companyknowingly makes a false or misleading declaration, it will be liable to penal prosecution (section 115.31(4) of the EQA).

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Thus, a company could be justified in terminating the employment of an officer or the mandate of a directorwho refuses to disclose Relevant Background and/or to authorize the company to perform such verificationsand/or to update information already disclosed, on the grounds that this person would not satisfy elementsessential to the maintenance of the contract. The conclusion is the same regarding a director or officer whodeclares such personal background while in office or while employed.

Non-Competition andNon-Solicitation: UpdateAndré Baril, Simon-Pierre Hébert andRachel Solyom

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Non-Competition and Non-Solicitation: UpdateI. Introduction

A company’s greatest wealth comes in part from its employees and their knowhow. Companies invest heavilyin their personnel for various training and retention activities. It is therefore important to protect thisinvestment and ensure that the knowledge of departing employees does not end up in the hands of thecompetition. In an increasingly competitive job market, it is crucial for companies to protect their rights andinterests when employees depart.

This paper includes an overview of the duties of departing employees as well as the legal processes forenforcement of these duties by former employers. It includes a discussion of the practical steps thatemployers can take to minimize risk and potential harm from competition by former employees, including theuse of effective restrictive covenants in employment agreements and the protection of intellectual property.Finally, it discusses the enforcement of restrictive covenants and employee obligations.

II. What Are the Duties Owed by Departing Employees to Their FormerEmployer?

The law provides that departing employees are free to compete with their former employer subject to the post-termination obligations included in their employment contract and duties owed pursuant to the law.

1. Duties Owed Pursuant to Québec Law

Employees owe certain duties to their employer by operation of the law, particularly the Civil Code of Québec(CCQ). First, employees must provide reasonable notice of their intention to resign, just as employers mustprovide reasonable notice of termination (Article 2091 of the CCQ). What is “reasonable” depends on theparticular circumstances of the case.

The other main duties of employees are found at Article 2088 of the CCQ which states:

2088. The employee is bound not only to carry on his work with prudence anddiligence, but also to act faithfully and honestly and not to use any confidentialinformation he may obtain in carrying on or in the course of his work.

These obligations continue for a reasonable time after cessation of the contract, andpermanently where the information concerns the reputation and private life ofanother person.

Therefore, the law imposes an obligation of loyalty and good faith as well as an obligation of discretion on adeparting employee.

1.1 Duty of Loyalty and Good Faith

All employees are subject to a duty of loyalty and good faith. They are obliged to be honest in their dealingswith their employer and avoid any activity which puts them in a conflict of interest.

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It is a breach of the duty of loyalty and good faith for an employee to compete with the employer, whether byworking for a competitor or developing a competing business, at any time during the currency of theemployment relationship. However, in a situation where the employer had tolerated complementarycompetition from the employee, the Québec Court of Appeal (QCCA) ruled that this was not a breach of theobligation of loyalty set out at Article 2088 of the CCQ.

1

This obligation survives the cessation of employment, although in a slightly different manner. Depending onthe circumstances, employees who leave a job and who have not signed restrictive clauses may be free toenter into competition with their former employer, either by starting their own business, working for acompetitor or soliciting a former employer’s customers.

2

However, in doing so, the employee cannot use any dishonest methods nor can he use privileged informationthat he acquired while working for his former employer.

3In other words, competing with a former employer is

neither illegal nor disloyal if it is done in good faith.4

The exact nature of the duty of loyalty varies for each employee depending on factors such as:5

the nature and the hierarchical level of the position held by the former employee;

the nature of the behaviour of the employee that can be considered disloyal or indiscreet;

the nature of the information the employee holds;

access to confidential information;

the nature of the contract or the business;

the former employee’s length of service with the employer’s company;

the reason for cancellation of the contract of employment;

the state of competition in the employer’s sector of activity;

the relationship between the employee and the clients.

A special application of the obligation to act loyally concerns solicitation of former colleagues and customers.Although this practice is not necessarily prohibited, some rules apply.

The jurisprudence has confirmed that there are no property rights to customers and that the former employeemay recruit his former employer’s customers if he does so fairly.

6For example, a former employee will be

prohibited from recruiting his former employer’s customers by using a confidential or stolen list. However, theuse of such a list is not prohibited if it can be reconstituted easily by legal means, such as the telephonedirectory or a business directory.

7An employee who has a special relationship with customers nonetheless

1 Concentrés scientifiques Bélisle inc. c. Lyrco Nutrition inc., 2007 QCCA 676, at paras 121-122.2 Ibid., at para. 42.3 Marianne St-Pierre Plamondon et Maude Grenier, « Les décisions récentes portant sur la non-concurrence en droit de l’emploi : quelles sontles leçons à tirer ? », Développements récents en droit de la non-concurrence 2009, Cowansville, Éditions Yvon Blais, 2009, 51 p. 82.4 Excelsior v. Mutuelle du Canada, [1992] R.J.Q. 2666 (C.A.).5 Marie-France Bich, « La viduité post-emploi : loyauté, discrétion et clauses restrictives », Développements récents en droit de la propriétéintellectuelle 2003, Éditions Yvon Blais, 2003, pp. 304-305 ; Supra, note 1, at para. 42.6 Supra., note 1, at para. 150, 152; Groupe Bocenor inc. v. Drolet, 2007 QCCS 3355 at para. 34 [Groupe Bocecor inc.].7 M.-F. BICH, supra, note 6, pp. 306-307.

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may be prohibited from communicating with these customers for a certain time after his departure, except ifhe resorts to general solicitation methods intended for the general public, such as newspaper, radio ortelevision advertising.

8The courts have also decided that communication by the former employee with his

customers to inform them of his departure without inviting them to follow him did not constitute disloyal activesolicitation.

9

As for solicitation of former colleagues, the employee may not headhunt his former colleagues disloyally10

orfor the purpose of organizing a malicious commercial attack against his former employer.

11However, the

jurisprudence does not consider it disloyal to discuss his future business projects with his colleagues.12

Finally, it must be added that the obligation of loyalty does not protect the company against illegalheadhunting of employees not employed by the company, but by suppliers serving as links between theemployer and the customers.

13

In 2008, the Supreme Court of Canada (SCC) discussed the question of unfair solicitation of formercolleagues in RBC Dominion Securities v. Merrill Lynch Canada Inc.

14by determining that the mass exit of

employees organized by a key employee of the company represented a breach of good faith punishable bydamages. Although this decision was rendered in a Common Law province, it adopts a solution similar to thatof the civil law jurisprudence coming from Québec.

1.2 Duty of Discretion

Employees are obliged pursuant to their duty of confidence not to make use of or disclose the confidentialbusiness information of their employer.

In assessing whether particular information is confidential business information, the courts will consider:

the extent to which the information is known outside of the business;

the extent to which the information is known by employees and others involved in the business;

the extent of measures taken to guard the secrecy of the information;

the value of the information to the business and to its competitors;

the amount of effort or money expended in developing the information;

the ease or difficulty with which the information can be properly acquired or duplicated by others;and

whether the confider and the confidee treat the information as confidential.

Any ambiguity as to scope or categories of information which an employer considers confidential ought to beaddressed by including express confidentiality provisions, including comprehensive definitions of whatconstitutes confidential business information in the employment contract;

8 Ibid.9 Imprimerie World Color inc. v. Lehoux, 2011 QCCS 1800 at para. 13.10 Marque d’or Inc. v. Clayman, [1988] R.J.Q. 706 (S.C.), (out-of-court settlement 500-09-000160-887).11 Groupe Bocecor inc., supra, note 6; Novilco inc. v. Bouchard (Usinage numérique Plus), 2010 QCCS 3015 at para. 123 [Novilco inc.].12 Novilco inc., supra, note 11, at para. 124.13 Conciatori v. Dubreuil, 2007 QCCS 4429 at paras 139-142.14 2008 SCC 54.

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Furthermore, the employee has the obligation not to disclose personal information he may have acquiredwhile working for the employer. This is a specific application of other laws protecting personal informationsuch as Articles 35 to 41 of the CCQ, Article 5 of the Québec Charter of Human Rights and Freedoms,

15An

Act respecting the Protection of Personal Information in the Private Sector16

or An Act respecting Access todocuments held by public bodies and the Protection of personal information.

17

Here are a few examples of information that was considered confidential:

commercial or fabrication secrets;

plans and mock ups related to the development of a new product or technique;

secret costumer lists;18

marketing strategies, business plans, financial data, trade secrets (to the extent that it is not lawfullyin the public domain)

1.3 Duration of These Obligations

Article 2088, paragraph 2 of the CCQ states that these obligations of loyalty and discretion continue for areasonable time after termination which represents the time needed by the employer to face the competitionthat is created by his former employee.

19In 2007, the QCCA affirmed that “the term of the post-contractual

obligation depends on the circumstances of each case, (…) but is rarely longer than a few months.”20

However, these obligations are permanent when it comes to personal information and, according to certainauthors, for trade secrets.

21

2. Duties Owed Pursuant to a Contract

The duties of discretion and loyalty provided by the law offer some protections against post-employmentcompetitive activities by departing employees. However, in certain circumstances, the employer may beparticularly vulnerable. For instance:

the employee may have developed special relationships of confidence and trust with the employer’spersonnel, such that the employer will be vulnerable to the employee soliciting or influencing othersto terminate their employment;

the employee may have or be expected to develop special relationships of confidence and trust withthe employer’s customers or suppliers, and thus be at risk if the employee solicits them or attemptsto divert business opportunities; or

the employee may have or be expected to obtain confidential business information of suchsignificance and sensitivity that the employer will be vulnerable to the employee making use of ordisclosing this information to others.

15 R.S.Q., ch. C-12.16 R.S.Q., ch. P-39.1.17 R.S.Q., ch. A-2.1.18 M.-F. BICH, supra, note 5, at 307.19 Pierre Verge, Gilles Trudeau, Guylaine Vallée, Le droit du travail par ses sources, Les Éditions Thémis, Montréal, 2006, p. 360.20 Supra, note 1, at para. 42; 9129-3845 Québec inc. v. Dion, 2012 QCCA 1276. [TRANSLATION]21 M.-F. BICH, supra, note 5, p. 260.

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In such circumstances, the former employer ought to consider contractual restrictions on post-employmentactivities.

2.1 Restrictive Covenants – Types

Employers and employees may include in their employment contracts express restraints or limitations on anemployee’s ability to engage in post-termination competitive activities. These obligations are known asrestrictive covenants.

There are four common categories of restrictive covenants, which are described below:

a) Non-Competition

The broadest form of restrictive covenant is the non-competition covenant. It is intended to limit generally thedeparting employee’s ability to engage in competitive activities.

b) Non-Disclosure

A non-disclosure covenant prevents the employee from disclosing and using the confidential information andtrade secrets of his former employer learned while working for that employer.

c) Non-Solicitation of Employees

A non-solicitation of employees covenant is a covenant designed to limit a departing employee’s ability tosolicit or influence other employees to terminate their employment with the former employer. Its aim is toprevent the departing employee from taking advantage of his relationships with other employees to thedetriment of the former employer.

d) Non-Solicitation de Customers

A non-solicitation of customers covenant operates so as to prohibit the solicitation by the departing employeeof the customers of the former employer for a period of time following the termination of employment. It isintended to prevent the departing employee from taking advantage of any relationships of confidence andtrust which he or she developed with these clients to the employer’s detriment.

In cases where the departing employee has relationships of confidence and trust with suppliers, the formeremployer may wish to expand the Non-Solicitation covenant to include post-employment solicitation ofsuppliers as well as customers.

e) Intellectual Property

Intellectual property represents several modes of legal protection of inventions, trade secrets, industrialdesigns, works, and even ideas. These legal vehicles created by legislation can take various forms, such aspatents, trade-marks, industrial designs and copyrights. The protection will vary, depending on the vehiclechosen and the type of information to protect.

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2.2 Restrictions Provided by Law to Non-Compete Covenants

Article 2089 of the CCQ is public order22

and imposes certain mandatory legal restrictions23

to non-competecovenants by stating the following:

2089. The parties may stipulate in writing and in express terms that, even after thetermination of the contract, the employee may neither compete with his employernor participate in any capacity whatsoever in an enterprise which would thencompete with him.

Such a stipulation shall be limited, however, as to time, place and type ofemployment, to whatever is necessary for the protection of the legitimate interests ofthe employer.

The burden of proof that the stipulation is valid is on the employer.

There is currently a debate on the application of this Article to restrictive clauses other than non-competitionclauses. The QCCA took a position in Robitaille v. Gestion L. Jalbert inc.

24and Gestess Plus (9088-0964

Québec inc.) v. Harvey,25

affirming that non-solicitation clauses, particularly those extending farther than merenon-solicitation, could be likened to non-competition clauses, and that Article 2089 of the CCQ thus wasapplicable to them. However, in Drouin v. Surplec inc.

26in 2004, the same QCCA had clearly distinguished

between the two types of clauses and had not applied Article 2089 of the CCQ to non-solicitation clauses.The jurisprudence thus is divergent on the subject. According to some authorities, the answer given by theQCCA in the Robitaille and Gestess Plus cases is wrong, because it does not represent the legislator’sintention and renders analysis of these restrictive clauses impracticable.

27Prudence is therefore essential in

drafting non-solicitation clauses, because a strong jurisprudential trend likens them to non-competitionclauses and to the restrictions of Article 2089 of the CCQ particularly when they are drafted in such a way thatthey in fact prevent one from competing rather than simply soliciting. That would be the case, for examplewhen the clause prohibits a former employee from “doing business” with clients. It is therefore recommendedto include a reasonable time and territorial limit for these clauses in these cases.

However, an important nuance must be applied between the restrictive clauses contracted under a saleagreement (business, shares, and commercial) and those agreed in a contract of employment. Thejurisprudence shows that restrictive clauses must be interpreted more generously and more broadly under asale agreement than under a contract of employment.

28However, it must be specified that the appeal to the

SCC in Guay inc. v. Payette has been authorized and that the highest court in the land will rule on thisquestion in the near future. This will probably stabilize the jurisprudence on this subject.

Moreover, restrictive clauses are not adequate protection against third parties, who are only bound to honourthem when they engage in competition or solicitation through an employee who has non-competition or non-solicitation obligations.

29

22 Ikon Solutions de bureau inc. v. Docu-Plus Conseillers en gestion de documents inc., 2009 QCCS 123 at para. 19.23 Service de pneux Desharnais inc. v. Bergeron, 2010 QCCS 746 at para. 107.24 2007 QCCA 1052 [Robitaille].25 2008 QCCA 314 [Gestess Plus].26 2004 R.J.D.T. 449 (C.A.) [Drouin].27 Alexandre W. Buswell et Alexandre Paul-Hus, « Les clauses de non-sollicitation de clientèle et les articles 2088 et 2089 du Code civil : entrela théorie et la réalité commerciale » (2009) 68 R. du B. 91.28 Guay inc. v. Payette, 2011 QCCA 2282 at para. 91; Gastier MP inc. v. Pelletier, 2010 QCCS 4653 at para. 25; Bouffard v. Supra Formulaired’affaires inc., 2008 QCCA 988 at paras 20-21; 9177-3259 Québec inc. v. Marcoux, 2012 QCCS 2578.29 THQ Montréal inc. v. Ubisoft Divertissements inc., 2011 QCCA 2344 at para. 47-48.

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The determination of reasonableness is dependent on the facts of each particular case. However, certainguidelines emerge from the jurisprudence:

the clause must be written in express terms and cannot be agreed upon orally;

the courts will uphold the clauses that are moderate in their restrictions;

the courts will not interpret imperfect clauses. They can only “declare them valid, null and void ornon-opposable;

30

the three limitations (time, space, nature of activity) are interrelated. If a clause restricts a greatnumber of activities, it will have to be more limited in time, space and/or nature of activity etc.;

each of these three limitations has to be valid for the clause to be valid.31

the clause must be limited to what is necessary to protect the employer’s legitimate interests, suchas protection of a trade secret or confidential information held by a key employee;

32

the criterion of what is necessary to protect the employer’s legitimate interests is a substantivecondition, as essential as the conditions of form set out in Article 2089 paragraph 2 of the CCQ.

33

Great care should be taken in the drafting of restrictive covenants and they should not be a standard “add-on”to every employment contract.

a) Article 2095 of the CCQ

A former employer will not be authorized to obtain execution of an employee’s contractual obligations if heterminated the employment relationship without a serious reason. Article 2095 of the CCQ states thefollowing:

2095. An employer may not avail himself of a stipulation of non-competition if he hasterminated the contract without a serious reason or if he has himself given theemployee such a reason for terminating the contact.

Employers should bear this rule in mind when they consider the best way to proceed in dismissing keyemployees.

b) Ladder-Type Restrictive Clauses and Notional Severance

Normally, any non-competition clause that is ambiguous regarding the conditions posed by Article 2089 of theCCQ must be invalidated. However, in Drouin,

34the QCCA authorized “ladder-type” clauses. Such clauses

involve alternative descriptions regarding the scope of the restrictive clause and provide specifically that if thebroadest restriction is considered illegal by the court, then the next greatest restriction will prevail, and so ondown the ladder. This drafting method is strongly contested, in view of the wording of Article 2089 of the CCQ

30 Supra, note 25, at para. 103. [TRANSLATION]31 P. Verge, G. Trudeau et G. Vallée, supra, note 19, p. 364.32 M.-F. BICH, supra, note 5, p. 278.33 M. ST-PIERRE PLAMONDON et M. GRENIER, supra, note 3, pp. 58, 62.34 Drouin, supra, note 28.

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The SCC, in Shafron v. K.R.G. Insurance Brokers35

analyzed a similar question from a Common Lawprovince. Thus, it rejected the use of the concept of notional severance in order to remedy ambiguous orunreasonable restrictive clauses and reaffirmed the general principle. This principle is to the effect that arestrictive clause must be drafted clearly, reasonably and unambiguously to be maintained and declaredenforceable by the courts. By rejecting the application of the notion of notional severance to restrictiveclauses contained in contracts of employment, the SCC indicated that such a practice put the employees at adisadvantage, because it did not give the employers any incentive to ensure that a given restriction isreasonable, thereby increasing the risks of binding an employee to honour an unreasonable clause:

36

The doctrine of notional severance] invites the employer to impose an unreasonablerestrictive covenant on the employee with the only sanction being that if thecovenant is found to be unreasonable, the court will still enforce it to the extent ofwhat might validly have been agreed to.

37

In addition to rejecting the concept of notional severance of restrictive clauses, the Court discussed “bluepencil severance,” or rectification of parts of the wording, as required, in order to remedy what wouldotherwise be an unreasonable or ambiguous clause. The Court concluded that this practice may only beresorted to in rare cases where the part being removed is trivial, and not part of the main purport of therestrictive covenant.

In 2009, in TQS inc. v. Pelletier,38

the Québec Superior Court (QSC) joined to the civil law analysis of arestrictive clause, the analysis developed in Common Law in the Shafron case. In fact, according to thedoctrine, the Shafron decision could consolidate “the Québec jurisprudence (…) which has invalidated ladder-type clauses.”

39

Nonetheless, since 2009, the Québec courts have not adopted the position of the SCC and instead havecontinued to apply the civil law position of the QCCA. For example, in 2011, the QSC, in MediscaPharmaceutique inc. v. De Lisio,

40ruled in favour of the validity of a ladder-type clause by relying on the

Drouin decision. Prudence is therefore essential in the use of ladder-type clauses, because jurisprudencebased on a SCC decision is trending to its general invalidity.

2.3 Ownership of Inventions

The employer is generally the owner of all inventions, improvements and ideas developed by an employee inthe course of the employment. However, employees have certain rights as against the employer pursuant tovarious provisions in copyright, trade mark and patent law.

It is important, therefore, for any employer engaged in product development, or relying on inventions andunique innovations in its business, to include express provisions in their employment contracts which clarifythe employer’s rights and the employee’s corresponding obligations.

These provisions should, at a minimum, include the following:

a statement of the employer’s rights in the employee’s efforts;

35 2009 SCC 6 [Shafron].36 ACS Public Sector Solutions Inc. v. Courthouse Technologies Inc., [2005] B.C.J. No. 2656 (QL) (C.A.).37 Ibid., at para. 40.38 2009 QCCS 597 at para. 49.39 M. ST-PIERRE PLAMONDON et M. GRENIER, supra, note 3, p.64.40 Medisca Pharmaceutique inc. v. De Lisio, 2011 QCCS 2875 at para. 22.

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a requirement that the employee report all ideas and inventions in the course of employment; and

a requirement that the employee cooperate in assigning ownership to the employer and in applyingfor protections such as patents, trademarks and copyright.

III. What Are the Options and Legal Processes Available for Enforcing theDuties Owed by Departing Employees to Their Former Employers?

The way a former employer proceeds will largely depend on the purposes sought:

If the former employer seeks compensation or damages for losses suffered as a result of thewrongful conduct of a departing employee, the former employer can commence litigation in thecourts.

If the former employer seeks compliance by the departing employee with his duties, either on aninterlocutory basis pending the trial of an action or for an extended period of time thereafter, theformer employer must apply to court for an injunction requiring the departing employee to cease allwrongful conduct.

The employer may both claim damages and seek an injunction to put a stop to future damages. The partiesmay also contract penal clauses. However, if the judge considers that the amount is abusive, he can reduce itaccording to Article 1623 paragraph 2 of the CCQ

1. Test on an Application for an Interlocutory Injunction

Cases require quick action by the former employer to prevent a departing employee from starting his ownbusiness or joining the business of a competitor. In such cases, it may be necessary for the former employerto apply to the court for an interlocutory injunction. An injunction is a court order prohibiting a party fromengaging in wrongful conduct. An interlocutory injunction is an injunction which subsists for a finite period oftime or up to the date of trial.

In order to succeed in an application for an interlocutory injunction against a departing employee, the formeremployer must present sufficient evidence to satisfy a court of the following:

1.1 Appearance of Right

It is not necessary for an applicant to show that the claim will likely succeed. It need only show that the claimis not frivolous or vexatious and that there is a serious question to be tried.

1.2 Irreparable Harm

The applicant must show that it would suffer irreparable harm if its application for an interim injunction was notgranted.

The SCC described the concept of irreparable harm in its 1994 decision in R.J.R. MacDonald Inc. v. Canada(A.G.)

41as follows:

‘Irreparable’ refers to the nature of the harm suffered rather than its magnitude. It isharm which either cannot be quantified in monetary terms or which cannot be cured,usually because one party cannot collect damages from the other. Examples of the

41 [1994] 1 S.C.R. 311.

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former include… where one party will suffer permanent market loss or irrevocabledamage to its business reputation.

1.3 Balance of Inconvenience

The court will weigh the effect on the former employer of not granting the injunction against the effect on theformer employee or new employer of granting the injunction.

1.4 Provisional Injunction

An application for an injunction can be brought without notice to the departing employee if the urgency of thesituation requires it. This is called a provisional injunction and is defined by Article 753 of the CCP:

753. The application for an interlocutory injunction is made to the court, by writtenmotion, supported by an affidavit affirming the truth of the facts alleged and servedupon the opposite party, with a notice of the day when it will be presented. In case ofurgency, a judge may nevertheless grant it provisionally even before it has beenserved. Notwithstanding the foregoing, in no case, except with the consent of theparties, may a provisional injunction exceed 10 days. (Our emphasis)

The burden on provisional injunctions is higher than the burden imposed on applicants who come before thecourt after giving notice of their application to the departing employee, because the urgency of the situationmust be shown.

IV. Preventive Measures

Former employers can seek to minimize the risk of wrongful competitive activity by departing employees, andtherefore avoid litigation, by taking the following preventive measures:

Give enough time and attention to the terms and conditions of the contract of employment written atthe beginning of the employment relationship and re-examine them periodically during theemployment relationship to ensure that the restrictive clauses and confidentiality provisions remainappropriate and opposable.

Audit existing employment agreements, especially those in place with key employees, to determinewhether the restrictive covenants and confidentiality provisions continue to be appropriate andenforceable. Legal advice should be sought before any changes are made as a failure on the part ofan employer to provide new consideration could render them enforceable.

Adopt business practices which operate to protect trade relationships and trade secrets. Forexample, maintain multiple contacts with clients so that the loss of a single employee is not fatal tothe overall relationship, and limit access to confidential business information to identified “need-to-know” employees only.

Adopt policies for the management and protection of confidential business information which aresimple and easily comprehensible, and train employees on these policies at the time they are hiredand on a regular basis thereafter.

Monitor employee compliance with such policies, including, if appropriate, through the use oftechnology which scans outgoing messages for release of confidential information and mandatoryprocesses for accessing confidential information that cannot be circumvented.

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V. A Final Word

Adequate protection of a company regarding its employees begins even before they are hired and continuesthroughout their employment. Thus, upon an employee’s departure, the company has the ability to protect thevital aspects of its business and its privileged relationships with its customers. It is thus important to providefor termination of your employees, by different legal and obligational means. The more you improve theprecision and uniqueness of your employees’ restrictive clauses, the more you will improve your intellectualproperty portfolio, and the more chance you will have of protecting your interests adequately. Very probably,you thus will avoid costly litigation and, even more important, protect your company from the dangers of unfaircompetition.

Finally, never hesitate to protect your interests if it appears that your former employees are in breach of theircontractual and legal obligations. Failing to do so would lessen the integrity and opposability of your contractsand policies, regardless of the care you devoted to drafting them.

Medical Information:What Are Your Rights?Jacques Rousse, Nathalie Gagnonand Anna Jankowska

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Medical Information: What AreYour Rights?I. Introduction

Employers are often frustrated by the uncertain parameters that surround requests for, as well as theassessment and use of, an employee’s medical information. This frustration is heightened by their potentialexposure to litigation for (a) discriminating on the basis of disability, (b) infringing the right to privacy or tophysical integrity or (c) violating of the provisions of an employment contract or a collective agreement,among other risks. Although in certain circumstances employers do have the right to intrude upon the privacyof an employee, what this entails and how it can be used remain unclear.

In order to understand this issue, it is important to bear in mind the interests that adjudicators must balance.On the one hand, decision-makers must take into account the interests of employees seeking to protect theaspects of their private life that are related to their medical information. On the other hand, an employer mayhave a legitimate business interest that justifies accessing that information. In this presentation, we willaddress case law that touches on this tension in the following circumstances:

1. verifying if an absence from work was justified on the basis of illness or injury;

2. clarifying doubts over accuracy and adequacy of a medical certificate;

3. determining if an employee is able to return to work; and

4. undertaking an accommodation process.

In deciding what information to ask for, employers’ guiding principle should be to request only suchinformation as is necessary under the circumstances. Some general guidelines regarding what informationemployers can request are:

5. in respect of short-term absences, confirmation that the employee suffered from an illness orinjury requiring an absence from work, the date the doctor saw the employee and theduration of the period of illness or injury;

6. in respect of long-term absences, confirmation that the employee has a medical conditionthat makes him unfit to work, confirmation that the employee is receiving treatment and theestimated date of return to work. An employer is entitled to ask for updates at reasonableand regular intervals, determined with reference to the length of the leave; and

7. in respect of returning to work after an absence, confirmation that the employee is fit toreturn to work, having regard to the physical and mental requirements of the position, anddetailed information about whether the employee has any restrictions, as well as their natureand expected duration. In these situations, it may be useful to provide the doctor with adetailed job assessment to help the doctor determine the requirements of the employee’swork.

Although much of the case law we refer to in this paper has been rendered in the context of labour arbitration,the general principles apply to non-unionized employees and work environments as well.

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II. Absence Verification

In principle, employers have a qualified right to request the reasons behind an employee's absence, and,when it is properly exercised, the employee is obliged to justify his absence. The key qualification of thisnotion, as will be discussed below, is that employers must have reasons for making such an inquiry.

Unfortunately, the limits of this right are variable and sometimes unclear. It is certain that employers’ rights torequest the production of medical information are not absolute and should not be exercised as a matter ofcourse each time an employee is absent from work.

1Requests must be justified with reasons and, to this end,

case law indicates that contractual stipulations, the presence of serious grounds to suspect abuse of medicalabsences and high rates of absenteeism before or after holidays are examples of grounds that may beconsidered in determining whether or not an employer’s request is justified.

2

Employers can request a broader range of information in the event of long-term absences than they could inthe case of short-term absences. Employers are generally permitted to verify the employee’s medicalcondition when a long-term absence is due to disability.

3In a recent decision, it was even noted that “the case

law is unanimous on the following issue: an employer has the right to verify the state of the health of anemployee who claims to be disabled.”

4The scope of the right to request information is also broad if the long-

term absence is due to an accident that occurred in the workplace.5

This latter consideration may be areflection of a lessened concern for the employee’s privacy because one would expect the employer to beaware of the cause and nature of an absence owing to an injury suffered in the workplace.

For short-term absences, however, case law tends to be more favourable to employees’ privacy rights. Anemployer cannot require the disclosure of medical information from the employee unless the employer hascompelling reasons for doing so. These reasons, for which the employer bears the burden of proof, mayinclude repeated or chronic absenteeism, fraud or abuse of medical absences. For example, in a recentcase,

6the Arbitrator Laplante concluded that the employer was justified in requiring the production of medical

information from his employee, even if the employee was absent for two days or less, as his absenteeism wasabusive. The abnormal situation justified the requirement even if the terms of the collective agreement did notspecifically allow it. In another way, the following passage, taken from Syndicat des employés professionnelset de bureau, Local 57 c. Caisse populaire Saint-Stanislas de Montréal,

7illustrates the attitude of many

arbitrators with respect to verifying short-term absences:

[…] the right to respect of one’s private life … demands that employers do notrequire employees to disclose the nature or the symptoms of an illness, ailment orhealth issue that forces employees to be absent for a short period of time whenthere are no reasonable grounds to believe that there has been abuse or when theemployee’s combined previous absences of do not exceed reasonable limits. […]The employer who requests clarification of an employee’s health following a shortabsence must have compelling reasons (or at least serious ones) to do so, reasons

1 Yves SAINT ANDRÉ, “Le respect du droit à la vie privée: mythe ou réalité?” in Développements Récents en droit du travail Cowansville,Éditions Yvon Blais, 2004, at p 70.2 Syndicat des employé-es de la société des casinos du Québec Inc. et La société des casinos du Québec Inc. (2001), D.T.E. 2006T-986(A.T.) (Me Denis Provençal), at para 49ff [“Casinos du Québec”].3Supra, note 1, at p 71.4Syndicat des employés et employées de bureau du réseau de transport de Longueuil, (section locale 3332 du SCFP) et Réseau de Transportde Longueuil, 2010 CanLii 50030 (QC SAT) (Me André Sylvestre), at para 76ff. [Translation]5Supra, note 1, at p 70-71.6 Syndicat canadien de la fonction publique, section locale 307 (SCFP-307) and Longueuil (Ville de), (Union Grievances), D.T.E. 2012T-622(A.T.) (Me Pierre Laplante).7 [1999] R.J.D.T. 350 (A.T.) (Me Marie-France Bich), at p 372 [“Saint Stanislas”].[Translation] See also Casinos du Québec, supra, note 2, at p22ff.

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that he must be able to prove; he cannot simply invoke the interest of protecting thehealth or the safety of the public or work colleagues or vague considerations on thenecessity to control absences.

[…] we are not implying that, in the case of a sick leave, the employer never has theright to know the nature or the symptoms of an employee’s illness or ailment, but weare stating that, at the very least, the employee’s right to respect of his private lifecomes first when there is no abuse or fraud (or allegations thereof), nor excess orsurpassing of reasonable limits, nor a long-term absence.

8

(Emphasis added.)

Thus, failing compelling reasons or obvious doubts raised by the employer, the employee’s right to privacyhas precedence over the right to obtain medical information regarding a short-term absence.

9One author has

even noted that clauses in collective agreements stipulating otherwise could be contrary to section 5 of theCharter of Human Rights and Freedoms (Charter), sections 3 and 5 of the Civil Code of Québec (Code) andsection 5 of the Act Respecting the Protection of Personal Information in the Private Sector (Act).

10Broadly

speaking, these provisions protect employees’ rights to a private life and limit the information an employer canrequest to the minimum amount needed for the purposes of the employer's deliberations.

In contrast, a minority of arbitrators have considered that verifications of short-term absences may, in somecases, be imposed unilaterally by the employer. One arbitrator observed that, in the absence of a statutoryprovision or contractual stipulation on the subject of medical certificates, employers reserve the right to verifyabsences, but must not exercise this right in a discriminatory, abusive, or arbitrary fashion.

11This provision

suggests that even in these cases, employee’s privacy rights will receive a measure of protection. It thereforeremains a prudent practice to have compelling reasons prior to verifying a medical absence, especially ifrequesting a medical exam.

12

Finally, employers can request medical information or a medical examination if there are reasonable groundsto believe that the employee's health conditions no longer enable him to perform his work. This ability relatesto the discussion below relating to an employee’s fitness to return to work after an absence and flows from theemployer’s duty to protect the health and safety of his employees. In all cases, however, employers mustrespect the right to privacy enshrined in the Code

13and the Charter

14and must limit the scope of their

requests to comply with the Act.15

8 Ibid, at p 372.9 Refer in particular to Syndicat des infirmières et infirmiers de l'Hôpital St-Luc (FIIQ) et Centre hospitalier de l'Université de Montréal - PavillonSt-Luc, D.T.E. 2006T-879 (A.T.) (Me Viateur Larouche) [“Hôpital St-Luc”]; Casinos du Québec, supra, note 2; Syndicat catholique des ouvriersdu textile de Magog Inc., section locale 10 c. Difco Tissus de performance Inc., [2000] R.J.D.T. 877 (A.T.) [“Magog”]; supra, note 1 at p 73;Alain BOND, "Politique en matière de documentation médicale" in Myriam JÉZÉQUEL, ed., Les accommodements raisonnables : quoi,comment, jusqu’où ? Des outils pour tous (Cowansville: Éditions Yvon Blais, 2007) at p 97ff.10Supra, note 1, at p 73.11 Syndicat des travailleurs de Praxair (C.S.N.) et Praxair inc., D.T.E. 2002T-413 (A.T.) (Me Noël Malette), par. 66; A. BOND, supra, note 9, p.97ff; Casinos du Québec, supra, note 2.12 See generally Techniciennes et techniciens et artisanes et artisans du réseau français de Radio-Canada (STARF) et Société Radio-Canada, D.T.E. 2012T-88 (A.T.) (Me Nathalie Faucher). Note that judicial review of this case is underway.13 ss. 3 and 5.14 s. 5.15 s. 5. See also Saint-Stanislas, supra, note 7.

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III. Clarifying Doubts Over the Accuracy and Adequacy of MedicalCertificates

Most arbitrators recognize that not all medical certificates are equal. They may, for example, be incomplete,unclear or produced in suspect circumstances. In these situations, the question as to whether employers candeclare themselves dissatisfied with the medical certificate provided by an employee explaining his absencesor disability often arises. Arbitrators now tend to acknowledge a right in favour of the employer to require anadditional medical certificate or examination to verify the claims of an employee. The case law describedbelow indicates, however, that this measure must be justified by grounds which are serious and reasonable.

In Union des employées et employés de service, section locale 800 et Collège Marie de France16

, anemployee about to be suspended for disciplinary reasons provided a medical certificate anticipating a two-week sick leave for depression. The arbitrator hearing the dispute drew the following conclusion in relation toan employer’s ability to request a medical examination when the certificate seems deficient or incomplete:

[Translation] The conclusion to be drawn from this case law and doctrine in a casesuch as this one is, if the employer has reasonable and serious grounds as to theinability of the employee to work for medical reasons alleged by this employee,given all relevant circumstances including the unspecified and incomplete nature ofthe medical certificate or several medical certificates filed by the employee, theemployer then has the right to require the employee to undergo a medicalexamination. Obviously, this medical examination must be limited to the facts atissue, meaning the contested medical condition. […] It is then up to the physicianmandated by the employer to determine how to go about this examination accordingto the extent and the limits of the employee’s professional prerogatives and abilities.

[…]

However, on this subject, taking into account the mandatory and quasi-constitutionalnature of the Charter of Human Rights and Freedoms and the fundamental right tothe respect of private life, I believe […] that we must not go beyond the real needs ofthe employer who must have access only, initially at the very least, to what isnecessary (and not simply useful) to manage the issue in question.

17(Emphasis

added.)

Similarly, in Syndicat des infirmières et infirmiers de l'Hôpital St-Luc (FIIQ) et Centre hospitalier de l'Universitéde Montréal - Pavillon St-Luc (aforesaid), an arbitrator found the employer could require an additional medicalcertificate or examination provided that the employer had reasonable grounds to believe that the certificateprovided is deficient.

18In this case, the grounds were related to a nurse’s chronic absenteeism.

Finally, recent case law suggests that the exercise of a right to clarify verifications of medical absences musthave a rational link to the management of personnel and must not be abusive, unreasonable, arbitrary ordiscriminatory.

19

16 Union des employées et employés de service, section locale 800 et Collège Marie de France, D.T.E. 2004T-645 (A.T.) (Me Jean-LouisDubé).17 Ibid., at p 32-33. [Translation]18 Hôpital St-Luc, supra note 9, para 150 to 152. See also Geneviève LAPOINTE and Michel BROCHU, "Santé mentale et invalidité: droits,responsabilités et attentes légitimes" in Développements récents en droit du travail en éducation, Cowansville, Éditions Yvon Blais, 2007 at p227.19 See generally Syndicat des professeurs du Collège Jean-Eudes et Collège Jean Eudes (2009), AZ-50569252 (A.T.) (Me Bernard Lefebvre),at para 86 and 103.

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IV. Determining if an Employee is Fit to Return to Work

In certain circumstances, employers may wish to ensure that an employee is fit to return to work after a periodof absence. In some situations, the Act respecting Industrial Accidents and Occupational Diseases

20and the

Act respecting Occupational Health and Safety21

authorize an employer to request an employee to undergo amedical examination or, in the case of an industrial accident or occupational disease, to provide sufficientproof of his fitness to return to work. An employee's refusal to comply with this request may be seen asinsubordination which may be subject to discipline and even dismissal.

22

Where these two statutes do not apply and the employer has reasonable grounds to doubt the ability of theemployee to perform his usual work or where an employee was on an extended medical absence due to hisdisability, arbitrators have acknowledged that employees have the right to request factual evidence or amedical examination confirming this ability to work.

23For example, in Banque Laurentienne du Canada and

Syndicat des employées et employés professionnels et de bureau, section locale 434 (SIEPB) (E.C.),24

anemployee of the Laurentian Bank took a sick leave due to a disability relating to certain psychologicalproblems. He continued to receive his full salary for several weeks and the medical certificates he providedunderlined that he was unfit to work. When the employee sought to return to work, the employer requestedmedical evidence to prove his ability to do so. The employee failed to provide new medical evidence and wassuspended for an administrative investigation. In reviewing the relevant jurisprudence on the subject, thearbitrator deciding on the matter stated the following:

Jurisprudence has acknowledged that an employer may suspend the return to workof an employee when he is not satisfied with the quality of the doctor's note that theemployee has provided to demonstrate his ability to return to work. If the employerhas reasonable grounds to doubt the accuracy of the first medical note, he maydemand that his employee be seen by an expert that he designates, and he maylegally suspend his return to work while waiting for the result of this follow-upmedical assessment. The employer has this right even when, initially, the employeehas met the initial onus of proving his ability to work with a prior medical certificate.This solution applies all the more in this case where complainant did not even meetthe preliminary burden of proving his ability to return to work.

25(Emphasis added.)

For the same reason, another arbitrator acknowledged the right of the employer to request a medicalexamination to verify the ability of an employee who wishes to return to work:

The employer's request for an employee to undergo a medical examination canhappen mainly under two (2) circumstances. The first is where the employee wishesto return to work after a sick leave for an illness or an accident. He provides hisemployer with a medical certificate from his treating physician. The employer thendeems this certificate deficient and wants to ensure that the employee is able toaccomplish his work. We can relate this case to that of an employee whoseemployer wants to withdraw him from work because he believes he is incapable ofperforming it for medical reasons. The second circumstance is that of the employee

20 s. 209.21 s. 51(3)(5)(12) and 223 (13).22 Jean-François BELISLE, "L’exercice du pouvoir disciplinaire de l’employeur en matière de lésions professionnelles et de santé et sécuritéau travail", Développements récents en droit de la santé et sécurité au travail, Cowansville, Éditions Yvon Blais, 2006, p. 243; see e.g.,Syndicat Canadien de la fonction publique, Section Locale 1296 et Commission scolaire de la capitale (2008), AZ-50519751, (A.T.) (Me GillesLaflamme).23 Refer in particular to Syndicat des travailleuses et travailleurs de Sylvania v. Osram Sylvania Ltée, 2004 CanLII 45969 (QC A.G.).24 D.T.E. 2009T-13 (A.T.) (Me Claude Fabien).25 Ibid., at para 108.[Translation]

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who claims he is unable to perform his work for medical reasons and then benefitsfrom an indemnity to compensate for salary, to which the employer, directly orindirectly, contributes in whole or in part.

26

In summary, in the eyes of arbitrators, disability constitutes sufficient grounds for an employer to require, inthe event of a return to work after a long-term sick leave, a detailed medical certificate or a medicalexamination. Indeed, the employer may have reasonable grounds to believe that an employee is still disabledand that his physical or mental condition will not allow him to perform certain specific functions.

V. Undertaking an Accommodation Process

When an employee has suffered from an injury or illness that impairs his ability to work, employers have aduty to take steps to accommodate him. Where such accommodations are required, employers, employeesand unions all have certain obligations, one of which is to collaborate in search for reasonablyaccommodating solutions. The Supreme Court of Canada, in Central Okanagan School District No. 23 v.Renaud,

27elaborated on the obligation of the employee:

[…] when an employer has initiated a proposal that is reasonable and would, ifimplemented, fulfil the duty to accommodate, the complainant has a duty to facilitatethe implementation of the proposal. If failure to take reasonable steps on the part ofthe complainant causes the proposal to founder, the complaint will be dismissed.The other aspect of this duty is the obligation to accept reasonable accommodation.This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannotexpect a perfect solution. If a proposal that would be reasonable in all thecircumstances is turned down, the employer's duty is discharged.

28

The employee is also obliged to provide as much information as possible to the employer in the search for asolution and to accept in good faith a proposed and reasonable accommodation, even if these measures mayinvolve certain inconveniences for him. If the employee does not provide sufficient information on his medicalcondition and if this information proves to be necessary for the accommodation process, it may be, dependingon the circumstances of the case, a breach of the employee's obligation. While it is usually up to the employerto take the initiative of finding an accommodating solution, the employee is not entitled to a perfect situation.

29

In Intragaz, Société en commandite et Syndicat des travailleuses et travailleursIntragaz (CSN),

30an employee, who was on leave for two years after suffering from

severe depression, refused, after consulting with the union, to undergo medicalexaminations intended to initiate the accommodation process proposed by theemployer. The employer therefore terminated its relationship with the employee. Thearbitrator deemed that the employer's request to know the medical condition of theemployee was a legitimate part of the accommodation process and dismissed the

26 Supra, note 16, p 3.27 1992 2 S.C.R. 970, at p 994-99528 Ibid., at p 994 and 995; see also British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 R.C.S. 3, at para65; McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R.161, at para 22.29 Linda LAVOIE, "Discrimination fondée sur le handicap et stratégies d’accommodement" in Myriam JÉZÉQUEL, ed., Les accommodementsraisonnables : quoi, comment, jusqu’où ? Des outils pour tous (Cowansville: Éditions Yvon Blais, 2007) at p. 39.30 AZ-50311659 (A.T.) (Me Denis Nadeau).

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grievance. This decision was upheld by the Superior Court.31

Subsequently, theCourt of Appeal denied the case’s application for appeal.

32

VI. How to Stay Within the Limits?

Certain medical information required from an employee goes beyond what an employer can access. Forexample, there are few circumstances where an employer may have access to information pertaining to adiagnosis or a medical treatment, as opposed to a prognosis, and everything will depend on the employer’sreal needs.

33Arbitrators have indeed affirmed that the employee has, under all circumstances, the right to

keep the personal factors leading to a medical condition confidential, even if the employer is informed of thediagnosis.

34

This therefore poses a question of balance between the employer’s right to manage his business and theemployee’s rights to physical integrity and privacy.

35The employer must be prudent before demanding a

medical examination. Asking an employee to systematically yield to this measure without serious groundsmay be deemed abusive or unreasonable.

36

VII. Guidelines for an Employer Who Requests and Uses Medical Information

The following principles may assist employers in their requests for medical information:

A. Statutory provisions or collective agreement clauses may govern the rights of an employer to request

medical information and an employer must abide by them or may use them.

B. More generally:

1. An employer cannot undertake excessive research to verify the medical aspect of anemployee's absence.

2. An employer has the right to request additional information beyond the medical certificateinitially provided by the employee, as long as he has reasonable grounds to doubt theaccuracy or completeness of the certificate. In such cases, the employer must clearlyindicate the deficiencies of the initial certificate and can only request what is necessary to forthe purposes of verifying the absences in question or assessing whether a return to work ispossible.

3. An employer can request information pertaining to a diagnosis or a treatment only under verylimited circumstances. He will have to demonstrate that he has serious grounds for requiringsuch information. It is more common to obtain a prognosis.

4. An employer may request that an employee undergo a medical examination to ensure thatthe employee is able to perform his duties in a safe and effective manner, or if there arereasonable grounds for doubting the employee’s ability to do so.

31 Syndicat des travailleuses et travaileurs Intragaz - CSN c. Fortin, 2006 QCCS 969. [Translation]32 Syndicat des travailleuses et travailleurs Intragaz - CSN c. Intragaz, s.e.c., 2006 QCCA 834. [Translation]33 Supra, section "Substantiating reasons for an absence".34 Supra, note 16.35 Ibid.36 Magog, supra, note 9; Syndicat des employés de Scapa Dryers c. Compagnie Scapa Canada Inc. (Div. Unaform), [1994] A.T. 202; Supranote 1, at p 73.

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5. An employer may ask for medical information when this information is directly related to aprocess or measures of accommodation and when they are essential the successfulreintegration of the employee.

Ultimately, an employer must objectively assess the legitimate interests of his enterprise and therefore tailorthe requests for medical information to respect these interests. He must, in addition, bear in mind hisemployees’ right to privacy. However, the employer should not adopt the same approach for everyone. On thecontrary, employers must take a flexible approach that takes into account the circumstances of eachparticular case.

Investigations in theWorkplacePierre Jolin, Guylaine Lacerte andAudrey Lévesque

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Investigations in the WorkplaceI. Introduction

A wide variety of occurrences may be classified as "workplace incidents" requiring an employer to undertakean investigation. Examples include employment injuries, psychological harassment complaints, theft, fraudand drug and alcohol abuse.

The purpose of this paper is to provide employers with some general guidelines that will allow them toproperly and appropriately investigate workplace incidents. This paper aims to give employers specific tips forconducting workplace investigations in three contexts: (i) disciplinary incidents, (ii) psychological harassmentcomplaints and (iii) health and safety incidents. It also uses examples from the recent jurisprudence toillustrate certain considerations related to conducting a workplace investigation.

II. Investigating Workplace Incidents: Preliminary Considerations

The purpose of an investigation is to gather information in an organized, complete and fair manner that willresult in accurate findings of fact.

Investigating workplace incidents is not harassment. Indeed, in many circumstances, an employer has apositive duty to investigate, especially when an employee alleges he has been the victim of psychologicalharassment.

1. Deal with Exigencies

The first step after any incident is to respond to its exigencies, not in the sense of punishing the allegedoffender, but rather to bring any crisis brought about by the incident under control.

1For example, in a situation

where workplace violence has occurred, the medical and personal needs of the victim should take immediateprecedence. Further, the integrity of the workplace should be ensured; property should be protected and anyaffected workplace processes should be attended to.

2

2. Identify the Nature of the Incident

The second step is to consider the nature of the incident: did the incident occur on or off-duty? Is it criminal innature? Is the incident the subject of a specific employee complaint, and if so, what are the rights of thecomplainant? Beyond determining the manner in which an investigation is conducted, considering the natureof the incident may lead to the conclusion that the integrity of the incident scene should be preserved. Theincident scene may provide the most invaluable source of evidence later on in the investigation.

3

1 This being said, depending on the nature of the incident, an employer may be warranted to suspend the alleged offender with pay, pending theoutcome of the investigation. The suspension should not be done for punishment purposes, but rather, to protect the integrity and safety of otherworkers and the workplace. The best way to remove an employee from the workplace pending the outcome of an investigation is to place him onpaid “administrative leave.”2 N. A. Keith, Human Resources Guide to Preventing Workplace Violence, (Aurora: Aurora Professional Press, 1999) at p. 187 [Keith].3 Ibid. Further, if investigating a health and safety incident, Section 62 of the Act Respecting Occupational Health and Safety, R.S.Q. c. S-2.1[AROHS], stipulates that the scene of the incident must remain unchanged until it has been investigated by the inspector, except to prevent anaggravation of its consequences, or unless the inspector authorizes a change.

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3. Note Legal Requirements that may apply

The third step is to consider whether the employer is under any legal restrictions regarding the manner inwhich the investigation is carried out. Any relevant legislation should be consulted. In addition, if a collectiveagreement is in place, it should be analyzed to determine whether there are provisions that may affect theinvestigation. For example, a collective agreement may require an investigation prior to suspension ordischarge, stipulate that investigations be conducted expeditiously, set out notice requirements, permit anemployee to have the assistance of a union steward at the investigation, or require written notification ofcertain types of allegations.

4. Choose the Investigator

The final preliminary step is to identify the investigator and/or investigative team.4

Care should be taken toensure the selected investigator is unbiased and has the necessary expertise and authority to conduct athorough investigation. As such, an employer may wish to seek external assistance if the investigation cannotbe completed in an unbiased manner, or if some special expertise is required (such as forensic auditingexperience or experience handling harassment complaints).To best ensure a fair and unbiased investigation,the investigator(s) should also be instructed to focus on fact-finding as opposed to fault-finding.

5

Checklist

Prior to commencing an investigation, the employer should consider the following questions:

Is there a “safe” mechanism in place for employees to report information regarding the incident to

management?

What is the nature of the incident?

Did the incident occur on or off-duty?

Are human rights issues involved?

Did the incident involve a threat to the health and safety of the employee or other

individuals?

Does the incident involve a complaint by another employee who would like the company to

enforce the employee’s workplace rights?

Is disciplinary action likely? If so, could it involve termination of employment?

Is the incident criminal in nature or does it involve allegations of a quasi-criminal nature?

How should an appropriate investigator be chosen?

Consider whether external assistance is necessary.

Ensure the investigator is relatively unbiased.

4 Keith, Ibid.5 Keith, Ibid. at p. 186.

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Ensure the investigator has the requisite authority to conduct the investigation.

Select an individual with suitable interpersonal skills.

Ensure the investigator has the necessary training. Ideally, an investigator should be trained

in investigative techniques, including fact-finding, questioning, decision-making, assessing

credibility and preparing documentation.

If possible, the investigator should not be the individual who will be making the final decision

regarding what to do about the incident.

Is there is a collective agreement?

If so, it is imperative to review the agreement and ensure compliance with any relevant

provisions.

III. The General Investigative Process

An investigation usually involves some or all of the following steps:

interviews of people who were involved in the incident or who witnessed some or all of the incident;

collection of documentary evidence, such as time cards, work records, e-mails, accounting or inventory

records, invoices or sales documentation, and building access records;

collection of actual evidence, including recovering stolen property, taking photographs of any evidence

such as stolen or damaged property, and preserving damaged or vandalized items;

"creation" of evidence by means such as video surveillance; and

production of an “incident report,” which, if intended to defend against existing or anticipated litigation,

should only be undertaken at the behest of legal advice so as to invoke privilege. Further, the

confidentiality and intended use of the report should be made clear throughout the investigation.

The investigation process will vary depending on the type of incident. For example, an alleged incident ofinsubordination will likely involve, primarily, the interviewing of witnesses, and, possibly, the collection ofdocumentary evidence such as time cards or other relevant documents. A harassment investigation willinvolve extensive interviewing of witnesses as well as of the complainant and alleged harasser, both of whomwill likely be involved in more than one interview.

1. Interviews

Conducting post-incident interviews of involved employees is perhaps the most important part of anyinvestigation, for three reasons. First, interviews help the employer gain a clear and comprehensive picture ofwhat occurred, providing valuable information that can help the employer to remedy the incident in anappropriate manner. Second, interviews, if conducted properly, provide an invaluable source of evidence iflitigation later becomes involved; interviewees can be committed to a story and/or helpful admissions may begathered. Finally, if the only evidence of a workplace incident is the two conflicting stories of the complainantand alleged offender, interviews give the employer the opportunity to assess the credibility of both partiesinvolved.

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Interviews should be conducted as soon as possible after the incident, when memories are vivid.

1.1 Before the Interview

In the preliminary stages of an investigation, a list of potential interviewees should be made, thenconsideration given to whether there are any possible legal restrictions or ramifications related to interviewingthem. If any of the potential interviewees may be involved in a criminal prosecution, legal advice should besought prior to meeting with them. Employers should ensure that witness meetings or statements do notundermine criminal charges, especially in very serious matters. Finally, if any of the interviewees areuncooperative, the employer should develop a strategy for how to deal with them, assess how crucial theirevidence will be, and determine whether the information can be obtained from alternative sources ifnecessary.

The employer should take care to design an interview that suits both the nature of the incident beinginvestigated and the individual being interviewed (i.e., consider whether the interviewee is the complainant,the alleged offender or a witness). Further, attention to the interviewee’s position in relation to the employer isimperative in designing the interview (i.e., consider whether the interviewee is management, unionized, acontractor or a member of the public). It is helpful to compile a list of points and/or questions to be covered inthe interview, and to develop a strategy for when and how various issues will be addressed.

Regarding the order in which interviews should be conducted, it is generally advisable to interview thecomplainant or injured party first, followed by any witnesses, concluding with an interview of the allegedoffender.

6The person conducting the interview will then possess enough background information so that he

can ask focused questions and be able to assess the credibility and probability of the answers provided by theemployee. By the time the alleged offender is interviewed, the person conduction the interview will have aclear idea of the incident gleaned from the interviews of witnesses and a review of the collected evidence. Aswell, the Employer should assess the strength of the evidence in advance to consider whether the timing ofthe interview is appropriate. For example, with a theft or vandalism problem, if the company has only weakevidence, it should decide whether to engage in video surveillance, surveillance by a private investigator orother means of collecting evidence, before an employee is confronted.

Checklist

A list of potential interviewees has been made.

Interviews have been scheduled as soon as possible.

The time and the place of the interviews ensure confidentiality.

A general description of the incident has been obtained.

All relevant documents have been gathered and reviewed.

An interview strategy has been developed.

Legal advice has been sought if any interviewees may be involved in criminal prosecution.

An appropriate interviewer or interview team has been selected.

6 As an exception to this strategy, when conducting a psychological harassment investigation, the alleged offender should be interviewed after theComplainant.

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Ensure the interviewer is a person with whom the interviewee will feel reasonably

comfortable.

1.2 At the Interview

At the interview, the interviewer should commence by explaining his role, the purpose and structure of theinterview, and relevant company policies. The interviewer should stress that confidentiality will be respected,but cannot be guaranteed. If interviewing a complainant, the interviewer should highlight who will beresponsible for making decisions about the investigation and explain any available remedies. Further, thecomplainant should be kept appraised of the status of the investigation as it progresses. If interviewing analleged offender, the allegations should be explained to the alleged offender.

The interviewee should be allowed to explain the incident in his own words. Open-ended questions shouldthen be used to elicit more information. Employers should avoid using leading questions, that is, questionsthat suggest the answer. For example, rather than asking whether the interviewee reported the incidentimmediately after it occurred, it would be better to ask what the interviewee did immediately following theincident. However, at later stages of the interview, once the interviewee has committed to a basic “story,”more pointed questions may be required to obtain the requisite amount of detail to conduct a thoroughinvestigation. Likewise, the use of probing questions at the later stages of the interview may be helpful to testthe employee’s response against the evidence already collected.

The interviewer should elicit a description of the incident; the date, time and place that it occurred; whetherthere have been similar/related occurrences; who was involved, including witnesses; whether anyone elsewas informed of the incident, and, if so, the details of their response, and so on. Care should be taken topress behind those statements that involve a conclusion rather than a statement of fact: for example, "Hestole the torque wrench," when in fact what the witness saw was someone who looked like the suspect exitthe side door of the building with a large rectangular cardboard box. Imprecise, exaggerated or vague witnessstatements may lead an employer to make a decision based on "evidence" that may later turn out to be lessstrong than was believed. The interviewer should also repeat the facts back to the interviewee to ensureaccuracy, and clarify any discrepancies.

When interviewing the alleged offender, it is very important that he be given a fair opportunity to explain hisside, to offer an explanation that shows his innocence, and to offer any mitigating explanation. Accordingly,either at the time of the interview or prior to it, the employee should be given adequate information of theallegation(s) against him/her, in order to permit the employee a full and fair opportunity to make a defense.The allegations should be briefly set out, having regard to who, what, where and when. It is not necessary totell the employee the names of all the witnesses or of all the details of the evidence collected.

All answers and comments made by the parties during the interview must be recorded. Notes must alsoreflect when the interview was conducted, by whom and who was present. Accurate notes must be kept of alldiscussions (i.e., who the witnesses are, exactly what he saw or heard). As it is difficult to conduct aninterview and take adequate notes at the same time, someone other than the person conducting the interviewshould take accurate and thorough notes. Whenever appropriate or possible, it is preferable to use anyexisting company forms to record the particular type of incident involved. Witness statements must be taken.If a person refuses to sign a statement, read his statement to him/her and ask that he sign anacknowledgment to that effect.

Close the interview by asking the interviewee whether he has any other information that might be important,and whether there is anyone else who may have information about the incident.

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Checklist

The purpose and structure of the interview have been explained.

At the beginning of the interview with the alleged offender, the following two questions should

be asked:

“We have asked you to come in today to discuss a situation that has arisen in the

workplace. It is extremely important that you answer the questions we will ask you in

an honest and forthright manner. Your future employment with the company may

depend on the honesty of your answers to the questions we will ask you. Do you

understand?” At the opening of the interview with the alleged offender, it may be

appropriate to ask the following two questions:

“Do you have any questions?”

Confidentiality is not guaranteed, or if the investigation is being undertaken with a view to litigation,

confidentiality with regard to the report is not assured.

All the relevant facts have been obtained.

Use open-ended questions to elicit an overview of what the witness saw. Avoid asking

questions that suggest the answer, doing so may "taint" the statements.

Elicit adequate detail, having regard to distances, the location of the witness and suspect, as

well as what was actually observed. Remember to probe about "who, what, when, where and

how.” Have the interviewee describe his positioning and/or movements with the aid of maps

or pictures of the scene of the incident.

Press behind statements that are conclusions, particularly those asserting the guilt of a

person, to get the facts supporting the witness’s conclusion.

Ask the witness who else was present or may have any information.

Where appropriate, obtain a map or diagram.

The facts have been repeated to the interviewee to ensure accuracy; any discrepancies have been

clarified.

Witness statements have been taken and signed by the witness (or at least acknowledged).

Prepare a written statement of the witness’s evidence and have the witness sign it. Make

sure the written statement is accurate and does not overstate the witness’s evidence.

All facets of the interview have been well documented.

Have someone there whose sole task is to take accurate notes of everything said at the

interview.

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End the interview with a "scoop" question, such as "Is there anything we haven’t talked about that I

should know about?" In addition, at the close of the interview, the following statement may also be

prudent:

“We would like to have the opportunity to review carefully your answers to the questions we

have asked you in this meeting. We may have further questions to ask you. If we do, we will

call you and ask you come back to see us. If you have any questions for us, or wish to

provide us with any further information, please do not hesitate to telephone us. Thank you for

meeting with us.”

1.3 After the Interview

After the interview, a written report of the incident as outlined by the interviewee should be prepared. It shouldthen be determined whether further investigation is required. If the interviewee has proffered any otherpotential sources of relevant information, further investigation should be conducted to obtain it. If the situationnecessitates further interviews with the particular interviewee, they should be scheduled.

7

Checklist

The interviewees have been kept apprised of the status of the investigation, if necessary.

A report of the interview has been completed.

Other sources of potential information have been followed up.

2. Documents/Records

Documents and records may be crucial evidence that can significantly impact the veracity of evidencecollected from witnesses.

8This evidence may include:

notes;

correspondence;

memoranda;

e-mail;

computer recorded data;

pictures;

7 When scheduling additional interviews, it should be kept in mind that most investigations should be concluded within thirty days of the incident.8 For instance, Section 100.6 of the Québec Labour Code, R.S.Q. c. C-27 [L.C.] gives arbitrators the power, upon application of any of the partiesor the party’s own initiative, to compel a witness to file a document. In the federal jurisdiction, Section 16(f.1) of the Canada Labour Code, R.S.C.1985, c. L-2. [C.L.C.], gives the Canada Industrial Relations Board the power to order production of any relevant document. Section 179 of theAROHS gives inspectors the power to access all the books, registers and records of any employer. Section 9 of the Act Respecting Public InquiryCommissions, R.S.Q. C-37 [A.R.P.I.C.], which is referenced in Section 112 of the Québec Charter of Human Rights and Freedoms, R.S.Q. c. C-12[the “Charter”], gives the Human Rights Tribunal the power to order witnesses to bring before them any documents that appear necessary forarriving at the truth. Section 109 of an Act Respecting Labour Standards, R.S.Q. c. N-1.1 [A.R.L.S.] stipulates that, in proceeding with an inquiry,the Commission des normes du travail may enter at any reasonable time any place of work or establishment of an employer and make aninspection thereof, which may include the examination of registers, books, accounts, vouchers and other documents. In the Federal jurisdiction,Section 141(h) of the C.L.C. gives health and safety officers the power to order production of any document related to health and safety.

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video;

floor plans;

time cards; and

workplace logs.

When collecting records or documentation kept independently by an employee, the employer must askdetailed questions, including:

when and why the employee began making notes or collecting documentation;

whether the notes were made contemporaneous to or after the fact; and

whether all relevant facts and/or additional incidents of a similar nature were recorded.

Checklist

Secure all documents (e.g., records, pictures and videos) that may relate to the incident.

Carefully review all documents to determine their relevancy.

3. Employee Searches

Tribunals and courts have generally insisted that an employer’s right to search an employee’s person orpersonal effects must give way to the employee’s right to personal privacy unless there is a real andsubstantial suspicion, for example, of theft or wrongdoing.

9The employer must therefore be prepared to

establish that adequate cause to justify the search existed, that available alternatives were exhausted, thatreasonable steps were taken to inform the employee and that the search was conducted in a systematic andnon-discriminatory manner. Searches based solely on circumstantial evidence, universal searches in theabsence of reasonable suspicion of wrongdoing and purely random searches will, in principle, violate this rule.

When an employer has reasonable grounds to suspect an employee of criminal conduct, it should ask forpolice assistance if its request to search the employee’s person or personal effects is rejected.

Checklist

There is adequate cause to justify a search.

All available alternatives have been exhausted.

Reasonable steps have been taken to inform employees.

The search was conducted in a systematic and non-discriminatory manner.

Police assistance has been sought if a request to search has been denied in a criminal context.

9 Section 5 of the Quebec Charter and Article 35 of the Civil Code of Quebec [C.C.Q.] provide employees with a general right to privacy. However,“a violation of the right to privacy […] cannot be characterized as illicit or wrongful if there is a reasonable justification or a legitimate purpose, or if itcan be concluded that the person consented to the invasion of his privacy” [translation], The Gazette (Division Southam inc.) v. Valiquette, [1997]R.J.Q. 30 (C.A.) at p. 36 [Valiquette].

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IV. General Post-Investigation Considerations

1. Reporting the Investigation

If the incident requires an investigation, it also requires an investigation report. The report should includebackground information such as the names of those involved, the date of the incident, the names of thoseinterviewed and any materials reviewed. The report should also detail the findings of the investigation,including a description of what happened, an assessment of the seriousness of the incident, a description ofany harm or injury, an assessment of whether anyone is culpable, the position of the parties involved, anyprevious warnings, the effect on the workplace and the type of evidence considered. Finally, the report shouldoutline any recommendations generated from the incident or the investigation.

Checklist

An investigation report has been completed.

The report includes all relevant information.

The report details the findings of the investigation.

The report outlines any recommendations.

A copy of the report has been given to all those involved.

2. Making a Decision

At the conclusion of the investigation, a decision must be made. Generally, the standard of proof required withrespect to workplace incidents is proof on a balance of probabilities.

10However, where the allegations are

very serious and would constitute criminal conduct, the proof required will have to meet the higher standard of"clear and cogent" evidence.

Checklist

A final determination of the issue has been made.

The final determination flows logically from the results of the investigation.

In Cebert v. Groupe d’imprimerie Saint-Joseph inc.,11

the complainant was assaulted without apparent reasonby a co-worker who had a conflict with a third employee present during the incident. Taken by surprise, thecomplainant did not even defend himself. When the president of the company arrived on the scene, hetreated him harshly and expelled him in an uncouth manner, even making comments with a racistconnotation. Later on, the evening of the incident, the complainant obtained reassurance in a telephoneconversation, in which he gave the president his version of the facts. The president acknowledged that theplaintiff was innocent regarding this assault and assured him that he would keep his job. However, a few dayslater, the complainant nonetheless was informed of his dismissal during a sudden meeting in which he couldnot express his point of view. In the letter given to the complainant, the dismissal was justified by the violentincidents that had occurred one week earlier, even though the investigation exculpated the complainant.

10 i.e. it is more likely than not that X occurred.11 2009 QCCRT 0373, motion for judicial review dismissed (2010 QCCS 7114).

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The commissioner thus affirmed that the employer “dismissed the employee expeditiously, withoutinvestigation or knowledge of the situation.”

12The fact that the employer’s customer no longer wanted the

complainant in his establishment was dismissed by the commissioner, because he considered that this was apretext, in view of the absence of steps taken by the employer to inform its customer about the realcircumstances of the incident. Regarding the responsibility incumbent on the employer, the commissionerwrote:

[61] However, just because the employer conducts an investigation does not meanthat its obligation is totally fulfilled. The result of the investigation is alsoimportant.

1314

Thus, since the employer’s decision does not reasonably arise from the conclusions of the investigation, theemployer did not fulfill its obligation to provide an environment free of psychological harassment. Indeed, bydismissing the victim of harassment in the same manner as the aggressor, the employer in fact aggravatedthe climate of harassment. The commissioner thus nullified the dismissal and ordered the reinstatement of thecomplainant.

V. Risks Associated with Investigations Tainted with Errors

A particularly clumsy or failed investigation may result in harmful consequences for the employer, such as acomplaint for psychological harassment.

In Alliance du personnel professionnel et technique de la santé et des services sociaux and Centre de santéet de services sociaux du sud de Lanaudière,

15a radiodiagnostic technologist saw her complaint for

psychological harassment accepted and received an indemnity of $3,000 for moral damages after aninvestigation regarding a workplace incident that went wrong.

While the arbitrator acknowledged that annoyances that could result from the normal exercise of managementrights do not constitute psychological harassment on their own, he noted several elements in the employer’sapproach that deviated from the generally accepted elementary standard of sound management. The mostsignificant were as follows: amateurism and improvisation during one of the meetings in the course of whichthe superior strayed from the initial allegation and added other criticisms with dubious foundations, failure tosubmit any specific fact that would allow the complainant to give her version of the facts, failure to take notes,allowing the complainant to understand that it was unnecessary for her to respond and repeating severaltimes to the complainant to watch her tone of voice, sometimes before she opened her mouth. The arbitratoralso considered the fact that the employer did not provide any explanation after the meeting, not giving thecomplainant the name of any patient or co-worker who had complained, or any incident report, even after thecomplainant reiterated her request for access to this information.

Two specific points were held against the employer. First, there was “mixing” the process related to a one-time incident and the processes leading to the formulation of general comments related to a problem with thecomplainant’s attitude. Such mixing, without drawing a parallel between the processes, constituted a fault onthe part of a manager. Secondly, making a serious but unfounded accusation against an employee is also aserious fault. It is useful to note that moral damages were awarded in this case for the loss of enjoymentresulting from the stress, criticisms and trouble related to the botched investigation process.

12 [Translation].13 Ibid.14 [Translation].15 2011 CanLII 69779 (QC SAT).

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In another particularly disturbing case,16

an employer received a severe reprimand for having wronglyconsidered an employee, the complainant, to be guilty of harassment against another employee. After a minorconflict with the complainant, an employee claimed that she had received threatening calls and letters andrequested assistance from her superiors, who launched an investigation to identify and dismiss theperpetrator of the harassment. A series of clues seemed to lead to the complainant, who became theemployer’s prime suspect. When the complainant and the other employees learned of the employer’ssuspicions, she felt ostracized and humiliated, and was worried about losing her job.

Denying the allegations throughout the investigation, her mental health deteriorated and she ended up havingto obtain a diagnosis of adjustment disorder with depressed mood, resulting from the psychologicalharassment she suffered at work. Two days after filing a complaint with the Commission des normes (CNT)du travail, she received a letter announcing her dismissal for her guilt in the harassment of her co-worker andher persistence in denying the evidence.

However, the CNT considered that the complainant was far more credible than her co-worker who accusedher of harassment. Indeed, the accuser falsified many items of evidence and deliberately misled the police onseveral occasions. In analyzing the proof, the CNT concluded that the letters and phone calls were the workof the person who claimed to be the victim of harassment rather than the complainant.

Although it acknowledged that the employer really wanted to resolve the situation occurring in its organization,the CNT did not absolve it of all blame – quite the contrary. First of all the CNT indicated that several items ofevidence were not correctly evaluated during the investigation and that the employer showed stubbornness,not offering the complainant any opportunity to exculpate herself by being confronted with the evidence theemployer had gathered. Moreover, the CNT added that the employer’s investigation was intrusive andabusive; particularly when, convinced of the complainant’s guilt, a superior threatened and insulted her infront of her daughter, in her home.

In this context, the CNT opted for severe penalties. It nullified the dismissal and ordered the employer to payan indemnity for lost salary, in addition to severance pay. It also condemned the employer to pay thecomplainant $15,000 in moral damages, $20,000 in punitive damages, and the representation costs she hadincurred.

VI. The Investigative Process

This section seeks to highlight various factors that should be kept in mind when conducting workplaceinvestigations in the following three contexts:

1. disciplinary investigations;

2. investigations of psychological harassment complaints; and

3. health and safety investigations.

It should be noted that a workplace investigation may not fall neatly into any one category. Depending on thenature of the incident at hand, an employer may have to undertake a “blended” investigation. For example, anincident of workplace violence may necessitate that the employer undertake an investigation engaging allthree contexts. A health and safety investigation will likely be necessary, as workplace violence usually affectsthe safety of some or all employees. Likewise, a disciplinary investigation will be necessary to properly dealwith the employee who committed the violence. Finally, the violence could be tantamount to psychologicalharassment.

16 Hélène Côté c. Assurancia Marcel Hamel inc., 2012 QCCRT 0004 (CanLII).

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1. Disciplinary Investigations

It is imperative to act quickly. An employer risks appearing to condone the incident if it does not

investigate and respond as soon as possible. If the investigation is likely to be lengthy, ensure the

alleged offender is notified of the investigation and its timeframe as soon as possible.

When conducting interviews, the following considerations are important:

Ask the alleged offender about any mitigating circumstances, such as provocation, personal

or health problems, economic circumstances, etc.

If warranted, consider asking an impartial person to act as a witness during interviews.

In a unionized context, disciplinary investigations and/or imposed discipline is usually addressed in

the collective agreement. Make certain the collective agreement is thoroughly canvassed to ensure

its provisions are followed during the investigation and/or imposition of discipline.

Care should be taken to determine whether the collective agreement contains any time limits

regarding investigations and disciplinary action. Some collective agreements stipulate time

limits at the investigation stage, e.g., “No disciplinary action shall be implemented after five

days from the date of the incident or the date the Company becomes aware of the incident.”

In addition, some collective agreement also stipulate time limits once an investigation is

complete, e.g., “No disciplinary action shall be imposed more than five days after the

conclusion of the Company’s investigation.”

In the recent arbitration of a grievance between Société de transport de l’Outaouais and Syndicat uni dutransport, unité 591,

17Arbitrator François Bastien was asked to determine whether it was illegal for an

employer to refuse a union the right to have one of its members represented by a lawyer during disciplinarymeetings. The employer maintained that the union representative chosen had to be duly elected by theunion’s members, which is not the case for an external lawyer.

Arbitrator Bastien finally concluded that in the absence of restrictions concerning this type of meeting in thecollective agreement, it was up to the union alone, under its exclusive power of representation, to designatethe representative of its choice, and that the union’s constraints were determined only by the concern forefficient management of its members resources.

The arbitrator also noted that the requirement of representation is imposed more vigorously when a meetingcan be described as disciplinary than when it is conducted simply in a fact-finding context. He cited a doctrinalauthority who affirms that the disciplinary meeting is held when the employer is seeking to obtain anadmission of guilt or an exculpatory statement, the key element being the intention to confront the employee.

Another decision18

recalls the importance of compliance with the deadlines prescribed in the collectiveagreement, particularly those which determine how much time the employer is allowed to inform theemployee of the penalty. This decision also confirms that it is up to the arbitrator and not to the employer todecide when an investigation has ended. For this purpose, the arbitrator must evaluate when the usefulinvestigation ended, i.e. when the employer had the necessary facts in hand to decide on the imposition ofdisciplinary action. If the arbitrator did not have this power, this would have the effect of allowing the employer

17 Société de transport de l’Outaouais et Syndicat uni du transport, unité 591 (grief syndical), D.T.E. 2012T-225 (A.T.), (Me François Bastien).18 S. Huot inc. c. Filion, 2007 QCCS 4461, motion for leave to appeal granted (2007 QCCA 1452), appeal dismissed (2008 QCCA 1788).

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to get around the deadlines prescribed in the collective agreement by pursuing a fictitious investigation aslong as it wished.

2. Investigating Psychological Harassment Complaints

Refer to the relevant sections of the Act Respecting Labour Standards (ARLS) should be consulted.

An internal investigation into psychological harassment complaints is necessary because the ARLS

requires that the employer take reasonable measures to stop harassment.

When conducting interviews, the following points should be considered:

Always describe to the interviewee the internal investigation procedure, including the

timeframe involved, as well as who will investigate the complaint and who will be responsible

for decisions related to the complaint.

When interviewing the complainant, it is advisable to undertake the following strategies:

The complainant should be asked whether he ever confronted the accused

employee concerning his conduct and asked that it stop.

Probe for reasons or ulterior motives that may have caused the complainant to file a

complaint, e.g., a poor performance review given by the accused employee.

Ask the complainant what he hopes will result from the complaint.

When interviewing the accused employee, it is advisable to undertake the following

strategies:

Provide the accused employee with sufficient information to enable him to understand the specific

nature for the complaint.

Give the accused employee the opportunity to respond to allegations and to provide other relevant

information, including the names of other persons who may have information, an ulterior motive the

Complainant may have in making a complainant, etc.

When interviewing witnesses, it is advisable to undertake the following strategies:

Provide the potential witness with sufficient information to enable him to understand the specific

nature of the complaint and to answer questions about it.

Limit the information provided to potential witnesses to a “need to know” basis. Circumscribe

information, where possible, to protect the identities and reputation of the Complainant and the

accused employee.

A particularly botched investigation following a psychological harassment complaint can cause the employerto take inappropriate actions which themselves will be considered as psychological harassment.

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In Laurent Vézina c. Agence universitaire de la Francophonie,19

which was discussed above, an externalinvestigation intended to shed light on a complaint concerning the hypothetical harassment of an assistant byan important executive, who had a spotless record, ten years’ experience and a good reputation in thecompany, was entrusted to an industrial psychologist. After receiving this report, the employer took a series ofactions against the executive concerned, which finally included his dismissal.

However, the Commission concluded that the report was not based on any tangible element, but insteaddepended on an erroneous knowledge and interpretation of the facts. It pointed out that no minimalverification of the report, particularly concerning its methodology, was conducted before the adoption ofserious actions against the complainant. It also noted the employer’s refusal to hear the executive’sexplanations and version or to inform him of the accusations against him, which imprinted the process with anunfavourable bias against the complainant and constituted a precipitous, arbitrary and unreasonable exerciseof management rights.

The Commission also noted that the investigation had been triggered without preliminary verification, withoutcomparing different versions or requesting explanations from the employees concerned. These elements,combined with the humiliation triggered by an email sent to all employees announcing the complainant’ssuspension, and by a speech vexatious to the complainant, delivered before all the employees of theinstitution where he worked, contributed to support his complaint of psychological harassment.

3. Health and Safety Investigations

Some points to consider:

The relevant sections of the Act Respecting Occupational Health and Safety (AROHS) and applicable

regulations should be consulted.

The reporting requirements under Section 62 of the AROHS need to be satisfied.

The regulations give more specific guidance. For example, the Regulation Respecting

Occupational Health and Safety in Mines20

(ss. 25.1) outlines specific requirements.

Notify in-house or external legal counsel about the accident.

Consider undertaking the investigation at the direction of the company’s lawyer, in an effort

to preserve privilege.

Consider whether counsel should attend at the accident scene.

If the company’s lawyer will be attending at the accident scene, depending upon

how long it will take the Company’s lawyer to attend, the Commission de la santé et

de la sécurité du travail (CSST) may or may not be willing to suspend its

investigation. At a minimum, the CSST inspector should be asked to refrain from

interviewing management witnesses until the company’s lawyer arrives. If the client

is located at a distance, in general the CSST will proceed to initiate its investigation,

but will cooperate with the employer to the extent that employer witnesses will not

be interviewed until the arrival of counsel.

19 Vézina, supra note 6.20 R.S.Q. c. S-2.1, r.19.1.

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Consider the issue of representation of the employer and others who may be prosecuted.

For fatal, critical or other serious accidents, the company’s lawyer should, if possible,

interview and prepare any management witnesses – before the CSST inspector conducts

interviews.

The investigation should include references to anything that will assist in the defence that the incident

was not foreseeable. For example, Joint Health and Safety Committee minutes, prior policies, worker

training, review of work refusals, and so on, should be canvassed. Ideally, the employer should

review documentation generated three to five years prior to the accident.

CSST inspectors have a great deal of discretion in recommending that charges be laid. Cooperation

with the CSST inspector may benefit the employer. Consider whether the company has information in

its possession indicating steps that were taken to prevent the specific occurrence, e.g., minutes of the

Joint Health and Safety Committee, completed work orders, etc. If so, the company should consider

compiling the information to highlight its conduct to the CSST. Before voluntarily providing documents

or information to the regulator, consult legal counsel.

Consider the pros and cons of preparing an internal written investigation report.

By establishing a report, the employer is exposed to the requirement to disclose it.

Therefore, it should review the report carefully to ensure that it does not contain incriminating

statements or admissions before it is produced in its final form.

A well conducted investigation can serve to clear an employer in the context of occupational health and safetyproceedings. Indeed, in Séguin and Société des alcools du Québec,

21an employee maintained before the

Commission des lésions professionnelles (CLP) that a branch manager’s physical assault “with a sexualconnotation”

22had caused her to have a major depression, which constituted an employment injury.

The professional investigator’s testimony was one of the elements accepted by the CLP to dismiss theapplication regarding the employment injury and thus clear the employer and its branch manager. Theinvestigator had met the worker in the company of a union representative and then had him approve anaccount of the facts to ensure their accuracy. In particular, the investigation had made it possible to put theworker’s credibility in doubt by noting numerous contradictions in his testimony and by gathering theimpressions and comments of the branch’s other workers.

VII. Conclusion

The goal of a workplace investigation is to obtain accurate facts about a workplace incident. The key to aproperly conducted and successful investigation is ensuring that it is –- and is perceived to be –- organized,complete and fair. This means following predetermined policy, collecting adequate information, allowingemployees to respond to any allegations against them and making a decision that is supported by the resultsof the investigation.

21 2007 QCCLP 2681.22 [Translation].

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