Curated Content Canada: The Intersection Of Workers' Compensation Immunity And Constructive Termination?

On January 8, 2021, the Court of Appeal of Québec¹ reaffirmed the exclusive jurisdiction of the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the "CNESST") in matters of work related accidents and occupational diseases, as well as the immunity of an employer and a co-employee from civil liability arising from an employment injury under the Act respecting industrial accidents and occupational diseases (the "AIAOD").

Context

Ms. Roadnight was an assistant manager in the service department of Costco Wholesale Canada Ltd. ("Costco"). Ms. Roadnight alleged that her supervisor, Mr. Dufour, made derogatory and demeaning comments about her during two meetings in September 2011. Following these two meetings, Ms. Roadnight went on sick leave for two years. In November 2013, a meeting took place between Ms. Roadnight and Costco's Human Resources Director to discuss her return to work. Costco first learned of the substance of Ms. Roadnight's allegations against Mr. Dufour at this meeting. In February 2014, a second meeting occurred, at which Mr. Dufour was present and denied the allegations presented by Ms. Roadnight. Since she perceived no willingness on Mr. Dufour's part to change his attitude, Ms. Roadnight ended the meeting and submitted her resignation.

Ms. Roadnight brought an action for constructive dismissal before the Superior Court and claimed from Costco and Mr. Dufour personally, among other things, pay in lieu of notice and moral damages for infringement of her dignity and for pain and suffering. It should be noted that at no time did Ms. Roadnight file a workers' compensation claim with the CNESST under the AIAOD alleging the occurrence of an industrial accident.

The Superior Court

Before the Superior Court, Costco argued in its defense that Ms. Roadnight's action was inadmissible because of the immunity from prosecution set out in sections 438 and 442 AIAOD, considering that the case related to the redress of an employment injury and the return to work, which falls within the exclusive jurisdiction of the CNESST.

Costco's argument was dismissed by the Superior Court, which found that the basis of Roadnight's claim was the termination of her employment rather than an employment injury and that she was not seeking the benefits provided for in the AIAOD. The Court ultimately found that Ms. Roadnight was constructively dismissed as a result of the events that occurred in September 2011 and in February 2014. The Superior Court awarded Ms. Roadnight $100,500 in pay in lieu of notice and vacation pay, as well as $10,000 in moral damages.

The Court of Appeal

In a unanimous decision, the Court of Appeal, per Justice Bich, allowed Costco's appeal and dismissed Ms. Roadnight's claim.

In reaching this decision, the Court of Appeal clarified that the immunity of the employer and the co-employee from civil liability applies as soon as the worker's situation may potentially constitute an employment injury covered by the AIAOD, whether the issue is one of compensation, rehabilitation or return to work. When the worker's situation falls under the AIAOD, the CNESST has exclusive jurisdiction to rule on a claim arising from an employment injury. Consequently, a worker cannot file a claim before the civil courts, even if he or she has not filed a workers' compensation claim with the CNESST. There are exceptions to the exclusive jurisdiction of the CNESST.

In Ms. Roadnight's case, the Court of Appeal determined that her claim was covered by the AIAOD and that the immunities from prosecution applied. Indeed, Ms. Roadnight's claim arose out of the two September 2011 meetings that resulted in her disability, which may potentially constitute an employment injury under the AIAOD. On this point, Ms. Roadnight argued that her claim was related to her return to work and not to the events of September 2011. The Court of Appeal specified that, even if it accepted this argument, her situation would still be covered by the AIAOD, since it involved a return to work following a potential employment injury, which is part of a sequence forming an indivisible whole covered by the AIAOD, namely: incident at work ? disability resulting directly from this incident ? absence from work ? return and conditions of the return to work.

Subsidiarily, the Court of Appeal addressed the issue of constructive dismissal. On this issue, Justice Bich stated that Ms. Roadnight did not encounter any circumstances that would qualify as a constructive dismissal. According to the Court, the only possible conclusion is that Ms. Roadnight resigned after being dissatisfied with the attitude of her employer and Mr. Dufour during the February 2014 meeting.

Conclusion

It is important to note from this decision that, although it is up to the CNESST to determine whether or not a worker's situation constitutes an employment injury covered by the AIAOD, the Court of Appeal indicates that the civil courts must decline jurisdiction in favour of the CNESST as soon as a situation potentially constitutes an employment injury. Moreover, even if the worker does not file a claim with the CNESST to determine whether he suffered an employment injury and to obtain compensation, the CNESST's exclusive jurisdiction must prevail. Consequently, a worker who has potentially suffered an employment injury will see his action against his employer or colleague, before the civil courts, dismissed because of the immunity from civil liability provided under the AIAOD.

The author would like to acknowledge the support and assistance of Vincent Lalonde, articling student at law.

Footnote

1. Costco Wholesale Canada Ltd. v Roadnight, 2021 QCCA 17

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