Telework is not a new phenomenon. According to the International Labour Organization, its rise dates back to the 1970s when a major oil crisis prompted many companies to keep their employees at home to reduce their energy consumption1. That said, since the Covid pandemic, teleworking has become widespread. Now, nearly a quarter of Canadian companies (22.5%) expect that 10% or more of their workforce will continue to telework after business is back to normal2. Needless to say, this mode of work is here to stay. However, teleworking can be a real headache for employers when it comes to injury prevention and occurrence. A more permissive caselaw The Act Respecting Industrial Accidents and Occupational Diseases3(the "AIAOD") may apply to homeworkers4. In fact, the courts have long held that a home can be considered a workplace within the meaning of this Act, where there is part of the work that is performed by the employee with the knowledge and consent of the employer5. In fact, before the pandemic, there were two opposing lines of caselaw regarding the acceptance of workplace injuries when they occurred in the home of the worker who was duly authorized to work remotely. One accepted them, the other denied them. However, it was all a question of circumstances. If the situation fell within the sphere of professional activities, it was accepted, even if it could be considered as part of the personal sphere. 6 However, since the pandemic, in 2020 and 2021, the Administrative Labour Tribunal (the "ALT") has issued several decisions expanding the boundaries of this sphere of professional activities. Several so-called "comfort" activities have been admitted in the context of teleworking, such as falling while walking during a health break7or on the stairs at home at the beginning of the lunch hour8. Similarly, going to the bathroom9, going outside to smoke10, getting a soft drink11, a coffee12, or a dish from the microwave13 could qualify as comfort activities within the sphere of work activities at work, even when teleworking. Although the restrictive trend could still be applied, it is important to note that each situation must be analyzed individually, taking into account the location of the event, the existence and degree of authority over the worker, the purpose of the exercise and its usefulness with respect to the performance of the work. In short, given the increased use of telework, employers should expect to see an increase in such claims. This observation should guide them in the organization of this new work method, especially considering the new amendments to the Act Respecting Occupational Health and Safety (the "AOHS"). Impact of amendments to the Act Respecting Occupational Health and Safety In 2021, the AOHS underwent a number of important changes. One of them is that the Act and its prevention obligations apply to both the worker who teleworks and the employer14. This means that the worker's home or open workspaces are now the employer's responsibility. For example, the obligation set out in section 51(7) of the AOHS, namely that the employer must provide safe equipment and ensure that it is maintained in good condition, applies in this case to the telework environment where the worker is located. This new reality entails obligations for employers and will undoubtedly have an impact on the courts' interpretation of the acceptance of an employment injury. Indeed, as shown in the previous section, recent decisions tend to demonstrate that accidents that occur at home in the context of telework are mostly admissible. Moreover, the new obligation set out in the AOHS according to which the telework environment is under the responsibility of the employer in matters of prevention related to occupational health and safety is likely to be interpreted by the courts as being more conducive to the recognition of workplace injuries. The link is certainly not direct, but the trend in caselaw and the amendment to the AOHS lead us to believe that this will be the case. Recommendations in light of the evolution of caselaw and amendments to the AOHS In light of the above, it would be advisable to establish or revise a telework policy in order to ensure that the obligations of the employer and those of the worker with respect to the telework workplace are clearly defined. For example, depending on the activities that may be carried out, it will be important to define the notion of workplace in a telework environment. To do so, each employer will have to ask itself many questions, such as: Do you want to allow teleworking in a cooperative teleworking location? What measures can be put in place to ensure that prevention obligations are met and that occupational injuries are avoided? Who will be responsible for ensuring that the employer's obligations regarding prevention are met in a context where the employee works remotely? How to manage employees who are outside the country? In short, all these questions will have to be analyzed in the context of drafting or rewriting a telework policy. The members of the Labour and Employment Law team remain available to assist you in your reflection and in the revision of your policy, if necessary. International Labour Organization, Challenges and Opportunities of Teleworking for Workers and Employers in the ICTS and Financial Services Sectors, Geneva, 2016. Statistics Canada, Canadian Survey on Business Conditions: Impact of COVID-19 on businesses in Canada, May 2020. CQLR, c. A-3.001. Club des petits déjeuners du Québec c. M.C. Frappier, 2009 QCCLP 7647. Quebecor Media Inc. et Marco Delgadillo, 2011 QCCLP 4843. Desrochers et Agence de revenu du Canada, 2011 QCCLP 7562; Futura manufacturier de portes & fenêtres inc. et Rossignol, 2020 QCTAT 2562; Benoît et NCH Canada inc, 2021 QCTAT 856. Laverdière et Ministère des Forêts, de la Faune et des Parcs (Opérations régionales), 2021 QCTAT 5644. Air Canada et Gentile-Patti, 2021 QCTAT 5829. Lefèbvre (Re), 2006 CanLII 70745 (QC CLP). Miljours et Ameublement Branchaud, 2016 QCTAT 809. Cormier et Société des Entreprises Innues d'Ekuanitshit (2009), 2019 QCTAT 3752, Robillard et DPCP, 2020 QCTAT 2933. Giroux et Pro Mec Élite inc, 2014 QCCLP 2853. Beaudry et Ministère de la Sécurité publique (Santé-sécurité), 2004 CanLII 92916 (QC CLP). AOHS, sec. 5.1.
- Québec, 2011
Catherine Deslauriers is a member in the Labour and Employment law group. She has a special interest in construction, occupational health and safety, worker’s compensation (financing and/or compensation of employment injuries), penal law and the management of cases involving medical concepts, such as cases related to disability or absenteeism.
Catherine is often called upon to intervene in investigations being conducted by different public bodies, such as the CNESST, the CCQ and autonomous auditing units like UPAC-CCQ and in investigation conducted by different parity committee. In particular, she has assisted employers in carrying out investigations following serious or fatal workplace accidents. She has also intervened on matters of subjection of construction projects to the R-20 Act. She has been involved in the implementation of work procedures in companies to ensure compliance with occupational health and safety legislation, as well as with auditing and improving internal mechanisms to control risks and dangers present in the workplace environment.
On numerous occasions, Catherine has managed and pleaded cases before the Administrative Labour Tribunal’s (Occupational Health and Safety and Labour Relations divisions), as well as before grievance arbitrators, the Court of Quebec (Criminal and Penal Division and Civil Division) and the Superior Court.
Catherine not only has litigation experience, but she is also ready and willing to accompany employers in their daily handling of workplace injury or occupational disease cases accepted by the CNESST, develop strategies to manage employee absenteeism, including both disciplinary and administrative aspects, as well as employee disability cases, develop strategies to improve the working environment, through policies, forms and training, and by implementing concrete measures and to find solutions to avoid costly disputes and foster agreement between contending parties.
In short, through her past experience in the CNESST’s Occupational Health and Safety Branch, as well her experience in the legal department of an employers’ association in the construction industry, Catherine has developed a special expertise that has proven to be a real asset in many ways.
Catherine Deslauriers, in the area of occupational health and safety, has represented and negotiated on behalf of various clients in cases of industrial accidents and occupational diseases, financing or prevention and inspection before the Tribunal administratif du travail.
- Defended companies before the Criminal and Penal Chamber of the Court of Québec that have been accused under occupational health and safety statutes and regulations or the Act respecting labour relations, vocational training and workforce management in the construction industry and its regulations.
- Advises and makes representations on behalf of different employers before grievance arbitrators
- Represented a company against a public body that was refusing to perform its legal obligations
- Participated in various negotiations in the construction industry to settle jurisdictional conflicts between different trades
- Pleaded subjection issues in the construction industry affecting a key area of the energy sector
- Successfully pleaded an application for judicial review against two decisions of an administrative tribunal which had wrongfully awarded benefits
- Criminal negligence of an employer: imposition of a severe and onerous penalty, 2020
- Collaboration Between the CNESST and the CDPDJ Regarding Discriminatory Harassment: What Every Employer Needs to Know, 2019
- The Quebec Court of Appeal Con rms the Power of the Administrative Labour Tribunal to Determine a Worker’s Capacity to Return to Pre-Injury Employment on a Case-By-Case Basis, 2018
- “What’s the Origin of Your Name?’ – a Discriminatory Question or Not?”, September 2018
- “L’immunité législative – MYTHE OU RÉALITÉ?” (Parliamentary immunity – MYTH OR REALITY?), Travail et santé magazine, June 2018
- “A Fatal Workplace Accident: A Company President Convicted of Manslaughter”, March 2018
- “Dépistage de drogue et d’alcool – PERMIS OU NON?” (Drug and alcohol testing – ALLOWED OR NOT?), Travail et santé magazine, March 2018
- “The Supervac Decision: The Court of Appeal Ruling”, February 2018
- “Maîtrise d’oeuvre : Inapplicable aux entreprises de compétence fédérale” (The role of prime contractor: Not applicable to businesses under federal jurisdiction), Travail et santé magazine, December 2017
- “Deconstructing Industry-Based Prejudices: Sexual Harassment in 2017”, November 2017
- “Accidents Graves : Savoir les gérer” (Serious Accidents: Know how to manage them), Travail et santé magazine, September 2017
- “Transfert de coûts: Possible suite à un congédiement?” (Cost transfer: Possible following a dismissal?), Travail et santé magazine, June 2017
- “The Impact of a Dismissal on the Costs of a Workplace Injury in Québec”, March 2017
- “The Limited Rights of Unionized Employees to Sue Without the Consent of the Union That Has Breached Its Obligation of Representation”, November 2016
- “Gestion des dossiers d’invalidité par l’assureur et l’employeur : une réalité conciliable ou irréconciliable” (Management of disability cases by the insurer and the employer: A reconcilable or irreconcilable reality) Lecture for Strategic Day – Disability insurance claims, February, 5 2022
- “Le maître d’œuvre: qu’est-ce donc?” (“Contractor: What is it?”) Lecture for l’École de technologie supérieure, Janurary 22, 2022
- “La diligence raisonnable et la responsabilité SST, application pratique sur les chantiers de construction” (Due diligence and OHS liability, practical application on construction worksites) Internal lecture, December 15, 2021
- “Les 10 erreurs d’un gestionnaire de dossiers de réclamations professionnelles” (The 10 mistakes of a professional claims case manager) Lecture for Université Sherbrooke, November 24, 2021
- “The return to Work and Society” Lecture for Benefits Together – Industry Panel – Medavie Croix bleue, October, 5 2021
- “Développements récents en matière d’accidents graves et mortels, gestion des accidents graves et mortels et négligence criminelle” (Recent developments in serious and fatal accidents, management of serious and fatal accidents and criminal negligence) Internal lecture, Septembre 28, 2021
- “The impact of Covid-19 on the workplace: The “new normal”” Lecture for the Canadian Association of Counsel to Employers (CACE), September 9, 2021
- “Roles, responsibilities and obligations of the supervisor” Lecture for Lavery clients, August 27, 2021
- “An Overview of the Regime and Practical Tools for an Efficient Management” CNESST Worker’s Compensation Claims, Avril 23, 2021
- “Occupational injuries: when? How? Why?” Lecture for the Lavery clients, March 31, 2021
- “Non-Compliance of the Act Respecting Occupational Health and Safety: Much More Than Fines!” Series of Workshops on Construction Law, 2019
- “Non Compliance of the Act Respecting Occupational Health and Safety: Much More Than Fines!” 2019
- “Symposium 2019 – Labour & Employment Law” 2019
- “Construction law: major decisions in 2018”, 2019
- “Le harcèlement au travail et la gestion des plaintes en milieu de travail” (Harassment at work and managing complaints in the workplace) March 2019
- “Construction industry, on serious and fatal accidents on construction sites’’ Training session for women, Les Elles de la construction, June 2018
- ‘‘La légalisation de la marijuana : les droits et obligations de l’employeur’’ (Legalized marijuana: the employer’s rights and obligations) Montréal, April 2018
- “Non c’est non – Outils pratiques pour contrôler le harcèlement au travail” (‘No’ means ‘no’ – Practical tools for controlling workplace harassment) Québec, January 2018
- “Carrying Out Construction Work in Quebec – An introduction” Toronto, November 2017
- “Trucs et astuces pour une filature utile” (Tips and tricks for effective surveillance), May 2017
- “L’ABC de la gestion de l’absentéisme” (The ABCs of managing absenteeism) April and May 2017
- “Effective Crisis Management: How to Manage Issues Relating to the Workplace” March 2017
- “La gestion des médias sociaux, un nouveau dé dans les milieux de travail” (Managing social media: a new challenge in the workplace) February 2017
- “L’importance de gérer les dossiers d’accidents du travail et de maladies professionnelles et les méthodes pour y parvenir” (The importance of managing workplace accident and occupational disease records and methods for doing so) December 2016
- “Regulation concerning safe management of asbestos” November 2016
- “Workplace Accident or Crime Scene? How to Prevent and Manage Serious or Deadly Workplace Accidents” Annual Labour and Employment Law Conference, Toronto, November 2016
- “Accidents sévères : comment les prévenir et les gérer, et leurs incidences en matière criminelle” (Serious accidents: prevention, management, and criminal law implications) Annual Labour and Employment Law Conference, Montréal, October 2016
- “Labour Law Variances in Quebec” September 2016
- “L’inapplicabilité du concept de maître d’œuvre aux entreprises de juridiction fédérale” (The non-applicability of the concept of the prime contractor to businesses under federal jurisdiction) Construction Law Symposium, Montréal, April 2016
- “Les obligations du maître-d’œuvre sur un chantier de construction et survol de la Loi R-20? (Obligations of prime contractors on construction sites and overview of Act R-20) ” July 2016
- Finalist for the Gala des leaders de demain award in the labour and administrative law category, Young Bar of Montreal, 2021
- LL.B., Université de Montréal, 2010
Over the years, the Quebec courts have repeatedly stated that dismissed employees have a duty to mitigate the damages they suffer as a result of a dismissal. This obligation, which is now codified in the Civil Code of Québec,1 has been adapted to the circumstances of the cases over which the courts have presided. The question, then, is whether the COVID-19 pandemic is likely to have an impact on a dismissed employee’s obligation to mitigate damages. The Administrative Labour Tribunal (hereinafter the “ALT”) addressed this issue in its recent decision Tourigny c. Fonds de solidarité des travailleurs du Québec (FTQ)2 (hereinafter the “Tourigny decision”). Background On August 30, 2021, the ALT upheld Ms. Tourigny’s complaint against a dismissal made without a good and sufficient cause under section 124 of the Act respecting labour standards.3 The complainant, who held a position as director of the Direction Marketing Investissement department before being dismissed on January 28, 2019, claimed, in particular, the wages she lost as a result of her dismissal up to the date of the ALT decision upholding her complaint. The employer argued that the complainant had failed in her duty to mitigate her losses. For her part, the complainant felt that she had done everything in her power to find a job quickly. It should be noted that the COVID-19 pandemic began while the complaint was being heard in court. Decision on the obligation to mitigate losses The ALT reiterated, quoting the decision in Durocher c. Lisam America Inc.,4 that dismissed employees have a duty to mitigate damages resulting from their dismissal, even when they are dismissed without good and sufficient cause. This obligation is one of means and is assessed based on the circumstances of each case using the reasonable person test. The ALT further noted, quoting the decision in Agropur, Division Natrel c. Teamsters Québec local 1999 (Montpetit),5 that the duty to mitigate damages consists of two components, namely (1) to make reasonable efforts to find new employment, and (2) not to refuse an offer of employment that is reasonable in the circumstances. In the Tourigny decision, the ALT confirmed that the complainant had failed to mitigate her losses. As such, it reduced the indemnity for lost wages by $34,000, finding that, given the pandemic and the scarcity of job offers, the complainant should have conducted a more thorough job search and been more open to positions that did not perfectly match the job she held prior to her dismissal. Thus, the ALT stated the following:  For the Tribunal, during a recession or even a pandemic, when job offers are less important and less financially attractive than in normal times, one must, on one hand, expect to conduct a more rigorous search.  On the other hand, one must be more open to offers which, even if they do not correspond exactly to those held in the previous job, are related to the expertise or jobs already held. [our translation]In short, with the pandemic in mind, the ALT deducted two (2) months of gross salary from the indemnity for lost wages, which amounted to $34,000, because: The complainant had taken two (2) trips abroad of about ten days each in the first few months following her dismissal, and the employer did not have to assume the financial consequences of the complainant’s choice to do so; The complainant had been in a management position for a short time and limited her job search to positions similar to the one she held prior to her dismissal. However, limiting herself to management positions with working conditions similar to those she had with the employer—which were exceptional—did not demonstrate a willingness to mitigate her damages. Thus, according to the ALT, the complainant had set aside several positions that could have provided her with a substantial income; and The complainant had applied for only one job during the first eight (8) months following her dismissal and thirty-eight (38) jobs over the next twenty (20) months, that is, fewer than two (2) jobs per month. Her job search efforts were therefore not considered sufficient. Conclusion In short, the Tourigny decision confirms that the context in which employees find themselves is relevant in determining the extent of their obligation to mitigate the damages they suffer as a result of their dismissal. In theory, employers should not be penalized when a dismissed employee fails to put in the necessary effort to find a job during challenging economic times. In circumstances such as these, arising from, say, a pandemic, a dismissed employee must make greater efforts to find a job, failing which the indemnity paid by their former employer may be reduced considerably. The members of our Labour and Employment Law group are available to counsel you and answer your questions. CQLR, c. CCQ 1991, art. 1479. 2021 QCTAT 5548. CQLR, c. N-1.1. 2020 QCTAT 4648. 2018 QCTA 445.
July 12, 2022 – Catherine Deslauriers, Guy Lavoie, Eric Thibaudeau and Lavery have been named as a reference in Occupational Health and Safety by Canadian Occupational Safety – 5-Star Safety Lawyers & Law Firms. To determine the best lawyers and law firms catering to the safety industry, Canadian Occupational Safety sourced feedback from safety leaders over a period of 15 weeks. COS’s research team began by conducting a survey with a wide range of safety officers to determine what companies value in the law firms they collaborate with.
Lavery is pleased to welcome the following professionals as partners in the firm: Dominic Boisvert France Camille De Mers Catherine Deslauriers Chloé Fauchon Pier-Olivier Fradette Marie-Eve Pomerleau These talented lawyers who are rising to the rank of partner have shown a strong commitment to the firm and the profession in recent years, and they brilliantly embody Lavery’s values: Excellence, Collaboration, Audacity and Entrepreneurship. “We offer them our congratulations on this significant achievement in their legal careers. The diversity in background of our new partners is a testament to the depth of our 360° service offering and our desire to be a growth partner for companies doing business in Quebec”, said Anik Trudel, Lavery’s Chief Executive Officer.
A team composed of Éric Thibaudeau, Laurence Bourgeois-Hatto, Catherine Deslauriers, Mélanie Desjardins and Cinthia Gauvreau is joining Lavery Lawyers in the Labour and Employment Law group in Montréal and Quebec City. The integration of Éric Thibaudeau and his team will further consolidate the firm’s leadership in labour law. This latest recruitment is part of our comprehensive approach to providing 360-degree client service and solidifying our position as a growth partner for key players in the Quebec economy. Nine other professionals joined our ranks during the last quarter, for a total of ten salaried professionals and four partners. This strengthens our legal teams in corporate law, litigation, intellectual property and labour law. Expertise at the service of our 360° approach, the key to our firm’s growth The pandemic has shown us that the labour law issues faced by employers affect all sectors of the Quebec economy. The addition of five seasoned professionals will enhance our employer advisory services, help our clients manage the legal and strategic aspects of employment and expand our firm’s comprehensive service offering in two of our four business centres. Their cutting-edge expertise, in the field of construction in particular, will help to address the many challenges facing an industry that is foundational to Quebec’s economic recovery, especially where workforce management is involved. Our firm’s attractiveness and reputation confirmed by the acquisition of exceptional talent “Lavery’s reputation in labour law is well established. The excellent reputation of its integrated service offer within the business community and its leadership position in a changing industry were determining factors in our decision to join the firm,” says Éric Thibaudeau, partner at Lavery. “The arrival of Éric, Laurence, Catherine, Mélanie and Cinthia in the extended Lavery family is a testament to the attractiveness of our platform, whose reputation, both in Quebec and outside our local market, rests above all on the acumen of our professionals and the quality of the mandates that our clients entrust to us. We are delighted that they chose Lavery to pursue their careers,” concludes Anik Trudel, CEO of Lavery.