Supreme Court of Canada confirms that workers’ compensations boards must defend workers’ human rights
On February 1, 2018, the Supreme Court of Canada held that the Quebec’s workers’ compensation board and tribunal must apply the Quebec Charter of human rights and freedoms when determining whether a return to work is possible under Quebec’s workers’ compensation scheme.
The case, Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 (CanLII), may be very significant for Ontario workers. It likely means that the WSIB must enforce employers’ human rights obligations during their return to work processes. This is a big change.
Caron clarifies that workers’ compensation boards and tribunals must apply the employer’s duty to accommodate – a “core and transcendent human rights principle” – during return to work even where their legislative scheme does not expressly impose a duty to accommodate. The Court stated that the Quebec board and tribunal had the power to impose measures on the employer to do whatever was reasonably possible to accommodate Mr. Caron’s individual injury.
ONIWG and IAVGO intervened before the Supreme Court in Caron because we have seen many injured workers suffer discrimination in their attempts to return to work. All too often, this discrimination severs their connection to the workplace. And yet, workers’ compensation boards regularly abdicate their obligation to ensure that injured workers’ human rights are respected as they re-enter the workplace. The Court’s decision in Caron will be significant for injured workers facing employment discrimination, especially for those who are already marginalized, non-unionized or precarious.
The Court’s decision should be interpreted by workers’ compensation boards and tribunals across the country, and certainly in Ontario, as an indication that they need to fulfill their statutory role in return to work in keeping with fundamental human rights principles. In Ontario, as in Quebec, injured worker legislation does not impose an express obligation on most employers to fulfill their duty to accommodate. Perhaps as a result, the WSIB rarely holds employers to account for failing to fulfill their human rights obligations. We expect boards will have to revisit their practices in light of Caron.
Caron also makes a number of important observations about the purposes of workers’ compensation schemes, including that injured worker legislation across Canada is “in effect, legislation that seeks to prevent unfair treatment of injured workers based on their disability” and that the duty to accommodate is entirely consistent with such a legislative scheme and has overlapping goals and objectives.