Workplace Safety Is Paramount: Dionne v Commission scolaire des Patriotes

A pregnant woman should not have to choose between her health (or the health of her fetus) and work, the Supreme Court of Canada declared in Dionne v Commission scolaire des Patriotes, 2014 SCC 33. In the unanimous ruling from five judges, the court also sent the message that provincial tribunals must take care that their decisions do not undermine the purpose of the legislation they are making rulings for.

Facts of the Case

Marilyne Dionne, a pregnant supply teacher in Quebec, accepted a one-day placement to work within a school board, Commission scolaire des Patriotes (“the School Board”). She had been working within the School Board for much of the previous year. After she became pregnant, her doctor told her that being in a classroom made her vulnerable to contagious viruses that could harm her fetus. Her doctor completed two certificates stating his opinion. Dionne gave the certificates to the Commission de la santé et de la sécurité du travail (Commission of Health and Workplace Safety), which informed her she was eligible for reassignment or Preventative Withdrawal (paid leave). Dionne also gave copies of the certificates to the School Board.

The School Board then appealed that decision to the Commission des lésions professionnelles, the Commission of Occupational Injuries (“CLP”). CLP found Dionne ineligible for the Preventative Withdrawal. The case was brought to the Quebec Superior Court, which ruled in favour of the CLP’s decision. A majority at the Quebec Court of Appeal sided with the lower court, with one judge dissenting. Dionne then appealed the decision to the Supreme Court.

Reasons from the CLP

After the Commission told Dionne that she was eligible for paid leave, the School Board appealed the decision to the CLP. The CLP found that Dionne, as a temporary worker, did not qualify as a worker under the Act. It found that no contract had been formed because she was not able to enter the school, which rendered her ineligible for work. It reasoned that, because no contract had been formed, she was therefore not protected by Quebec’s An Act respecting occupational health and safety, chapter S-2.1 [the Act].

The Purpose of the Act

Justice Abella, writing for the court, found that the purpose of the Act was to provide financial security to workers who are forced to withdraw from work temporarily. She found that the Act imposed a clear duty on employers not to expose workers to unsafe workers and, importantly, also granted workers the right to refuse unsafe working conditions. She also noted that the legislative scheme had specific provisions to protect pregnant women and deemed them to be as available to work as non-pregnant workers. These provisions underscored the policy of preventing the discriminatory exclusion of women from the workplace. She noted, “The Act therefore protects pregnant women in two significant ways: it protects their health by substituting safe tasks for dangerous ones, and it protects their employment by providing financial and job security” (para 30).

Defining the Term “Worker”

Justice Abella found that supply teachers met the definition of contract employment under Quebec’s Civil Code. She also found that the Act itself had a broader definition of worker than the Civil Code. Its definition of worker was an inclusive and broad one that captured contract workers and interns. The exceptions it carried were for managers. This, she said, shows a clear intention within the Act to protect people working for organizations. There are specific provisions that apply to pregnant women, and there the protection is even broader, as it includes women in managerial positions.

Justice Abella also noted that the Act allows all workers to withdraw from an unsafe workplace. This indicates that a contract has been formed and they are deemed to be working, which allows them to withdraw from an unsafe workplace. It would not make sense, she argued, to say that withdrawal from a workplace meant that the contract had not been formed. She stressed that the withdrawal by a worker is not about the refusal to work: “What prevents the performance of work is the employer’s inability to provide a safe working alternative” (para 40).

Pregnancy does not change a worker’s qualification for employment, she wrote. She noted that the dissenting judge at the Quebec Court of Appeal felt that the CLP’s decision would have the result of denying benefits to thousands of supply teachers. She echoed his thinking that Dionne was simply acting according to her statutory right to refuse to work in an unsafe environment.

Conclusion

Beyond underscoring the importance of workplace safety, this ruling sends the clear message that Quebec employers should actively work to eliminate barriers that would exclude women from the workplace and that the issue is alive across the country. It also sends the message to administrative tribunals that they need to be keenly attuned to the policy goals of the legislation they are administering.