The CNESST's new allocation policy losing steamBy Amélie Chouinard Lawyer
In April 2015, the CSST - now the CNESST - adopted a policy that spelled major changes for employers with regard to cost allocation for industrial accident claims. More specifically, the new policy eliminated the option for an employer to recover the high costs incurred when an employee's occupational injury was consolidated (i.e. when an employee is recovered with no functional limitations).
Prior to the CNESST's 2015 policy
Prior to April 2015, when the Bureau d'évaluation médicale (BEM) medical evaluation board deemed that an employee's injury was consolidated without functional limitation, the CSST would rule that the employee could return to work and was able to perform his/her job retroactive to the date of consolidation determined by the BEM. Therefore, when the BEM retained the consolidation date determined by the employer's physician, the CSST would withdraw all the costs allocated to the employer's file in connection with the indemnities received by the employee between the consolidation date and the date at which he/she was deemed capable of returning to the position. In this context, it was of significant interest to employers to remain up-to-date on their employment injury claims and exercise their rights under section 209 of the Act respecting industrial accidents and occupational diseases (hereinafter the "Act") by requiring that injured employees be seen by experts and asking that the claims be transferred to a member of the Bureau d'évaluation médicale.
Impact of the CNESST's 2015 policy
Based on the 2010 ruling by the Court of Appeal in Canada Post Corporation v. Morissette (2010 QCCA 291), the CNESST adopted its new policy in 2015. Under the policy, the CNESST affirmed that, from then on, even in cases in which a member of the BEM determined a consolidation date prior to the examination and prior to the date determined by the employer's expert physician, in particular, the employee would be declared capable of returning to work on the date at which he/she is informed by the CNESST and not retroactive to the consolidation date determined by the BEM. In doing so, the CNESST affirmed that all the costs allocated to the employer from the date of consolidation determined through medical assessment and until the date at which the employee was informed that he/she had been deemed capable of returning to work would be charged to the employer. It goes without saying that the option for employers to exercise their rights to require expert opinions and recover considerable sums was practically obliterated
Much has been written since 2015
Of course, the employer community spoke out against the CNESST's new policy and quickly went before the occupational health and safety division of the Tribunal administratif du travail (TAT) to contest it. Almost two years later, caselaw reveals that there is a certain level of controversy surrounding the TAT's position on the policy. While several rulings confirmed the legitimacy of the new policy in terms of the interpretation of certain sections of the Act, others did not.
More specifically, there is a clear legal trend to reject the policy's principles given its non-compliance with the provisions of the Act and the fact that it directly denies employers the right to manage their employment injury claims through expert opinions and the medical assessment process. For the TAT, nothing in the Act prevents the date at which an employee whose injury is deemed consolidated without functional limitation is considered capable of returning to work from being retroactive to the date of consolidation. The Tribunal is of the opinion that the approach would be more in keeping with the provisions and general scheme of the Act and employer rights. With regard to the ruling in Canada Post Corporation v. Morissette (2010 QCCA 291), which the CSST used as the basis to enact its policy, many administrative judges note that the decision was rendered in a very particular context that must be taken into consideration and not applied systematically.
While administrative judges are tending to return to the legal situation prior to the adoption of the CNESST's policy, the TAT itself remains divided on the issue. Two rulings that go against the CNESST's policy are currently subject to a leave to appeal to the Court of Appeal (Steamatic BCQ v. Lorrain, 2016 QCTAT 2778) and a notice of appeal (CPE Petits semeurs v. Beyrouti, 2016 QCTAT 4183). We will therefore be following what the Court of Appeal and TAT have to say with regard to the controversy very closely.