Johanie Ouellet is a Patrol Sergente at the Quebec City Police Service. His work is to supervise patrollers and perform various administrative tasks. She qualifies her work herself as that of a “manager”.
On December 23, 2020, she presented to her employer a ticket from the doctor attesting to her pregnancy. The medical certificate also establishes that the tasks which are carried out in the field have dangers for itself as well as for its unborn child.
The same day, Ms. Ouellet is removed preventively from work, without being offered any reallow. Believing that her managerial position makes her “easy” reallocating, she officially asks to be entrusted with other tasks during her pregnancy.
Since the city refuses to reallocate it, the sergeant files a complaint to the Committee on Standards, Equity, Health and Occupational Safety (CNESST) on February 10, 2021.
Under The Occupational Health and Safety Actshe says she has undergone reprisals or discriminatory measures.
The complaint of Ms. Ouellet is declared inadmissible on April 29, 2022 by the CNESST, a decision confirmed by the Administrative Labor Tribunal (TAT) on December 16, 2022.
An unreasonable decision of the state
At the request of the Sergente, the Quebec Superior Court hosted the appeal in judicial control of the TAT decision on February 29, 2024.
In his judgment, the judge of the Superior Court, Nancy Bonsaint, describes the decision of the state as “unreasonable”.
According to Bonsaint judge, the state has “adopted an overly restrictive interpretation” and a “truncated” analysis, since it did not take into account the jurisprudence of the judgment Dionne c. Patriotic School Board.
“The state did not complement the analysis to which he should have been tested, that is to say to examine the reasons for refusal of the city relating to the request for reassignment presented by Ms. Ouellet. Only this exercise would have made it possible to determine if its complaint […] was founded, ”says the judgment.
The judge referred the decision to the state in order to “make a decision in conformity” to the Occupational health and safety law.
The city touched by appeal
Quebec City appealed this decision of the Superior Court. In a judgment dated June 27, the Quebec Court of Appeal confirms the decision and rejects the appeal of the municipality.
The state, just like Quebec City, was of the opinion that “nothing obliges the employer to follow up on the request for the reallow of the worker or to reassign it”.
The court of appeal, like the Superior Court, however contradicts this interpretation.
According to the Appeal Court, the judgment Dionne As well as the program for a maternity without danger of the CNESST rules that the employer “has no obligation of result” in his reallocating procedures, but that he “has however an obligation of means which requires him to seek a security assignment for the pregnant or breastfeeding worker”.
Without having to communicate his decision or to formulate it within the framework of a formal process, the employer must however “be able to explain this decision” not to reallocate the worker, notes the judgment of the Court of Appeal.
Thus, the court refers the decision to the state, which will have to determine whether or not to have a sanction “in light of the reasons invoked by the city to refuse the reallow.
