Executive Summary: Key Legal and Evidentiary Issues

• Legality of the CNESST’s reconsideration under article 365 LATMP without prior notice to the employer and the consequences of that procedural breach
• Divergent jurisprudential approaches on whether failure to inform an affected party before reconsideration renders the CNESST’s new decision null ab initio or merely constitutes a defect curable on review or contestation
• Scope and effect of the parties’ common admission that the CNESST did not notify the employer, and whether the TAT could disregard that admission without warning
• Reliance by the TAT on an internal CNESST “note évolutive” of 24 January 2020 as proof of notice, despite its sparse content and without giving the parties a chance to address its probative value
• Determination that the applicable standard of review for procedural fairness and the right to be heard is correctness, leading to strict scrutiny of the TAT’s handling of the preliminary issue
• Remedy granted by the Superior Court: annulment of both TAT decisions and remittal to a differently constituted panel, with costs to the employer but no quantified monetary award specified

Background and parties
Anodisation & Peinture T.N.M. inc. is an employer in Québec whose former employee, Alain Martel, claimed to have suffered a workplace injury in the form of a severe depression. Martel filed a claim with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) for recognition of a “lésion professionnelle” occurring on 28 May 2019. The matter arose in the context of a workplace harassment investigation and the Québec workers’ compensation regime under the Loi sur les accidents du travail et les maladies professionnelles (LATMP).
Initially, on 10 September 2019, the CNESST refused Martel’s claim. Martel sought revision of that refusal. On 27 January 2020, invoking article 365 LATMP, the CNESST reconsidered its earlier decision on its own initiative after receiving a harassment investigation summary it viewed as a new material fact. It then accepted Martel’s claim and recognized that he had suffered a compensable psychological injury. On 25 June 2020, the CNESST’s Direction de la révision administrative declared the original refusal of 10 September 2019 without effect and confirmed that Martel had indeed sustained a severe depression as a work-related injury on 28 May 2019.
Anodisation & Peinture contested this revised administrative decision, bringing the dispute before the Tribunal administratif du travail (TAT). The underlying substantive issues were whether Martel had actually suffered a compensable workplace injury and whether the CNESST had lawfully exercised its power under article 365 LATMP to reconsider its own decision without first notifying the employer.

Chronology of the CNESST and TAT proceedings
The employer’s challenge led to a file before the TAT, where it raised two key grounds. First, it maintained that Martel had not suffered a workplace injury on 28 May 2019. Second, it argued that the reconsideration decision of 27 January 2020 was illegal because the CNESST had not informed the employer of its intention to reconsider the earlier refusal decision, contrary to article 365 LATMP. That article expressly requires the Commission, before reconsidering a decision based on new essential facts, to inform the persons to whom the original decision was notified. This duty to inform is part of the broader framework of fair administrative decision-making under the LATMP and the Loi sur la justice administrative.
As the TAT proceedings advanced, the parties and the TAT agreed, in the interests of proportionality and judicial economy, to deal first with a discrete preliminary question. This question was whether the CNESST’s failure to inform the employer before the January 2020 reconsideration rendered that reconsideration invalid. The parties explicitly agreed—and communicated to the TAT—that the only issue to be argued at the first hearing would be the legality of the reconsideration decision in light of the supposed lack of prior notice to the employer, not the substantive merits of Martel’s entitlement to benefits.
On 11 May 2022, in its first decision (TAT-1), the TAT rejected the employer’s preliminary argument, held that the CNESST was justified in reconsidering its prior refusal, and modified the CNESST administrative decision accordingly. It then indicated it would convene a later hearing on the merits of the contestation regarding the injury itself. Dissatisfied with TAT-1, the employer invoked article 49 of the Loi instituant le Tribunal administratif du travail to seek revision or revocation of that ruling, alleging substantive and procedural defects. On 6 February 2023, in its second decision (TAT-2), the TAT dismissed the employer’s revision request and upheld TAT-1.

Preliminary issue before the Tribunal administratif du travail
The preliminary issue at the TAT concerned the legal consequences of the CNESST’s failure to give prior notice under article 365 LATMP. The parties had jointly admitted that the CNESST had not informed Anodisation & Peinture before revisiting its earlier refusal decision. This admission was crucial: if the CNESST’s failure to inform the employer was treated as fatal, the reconsideration decision would be null ab initio, and the later acceptance of Martel’s claim could not stand.
The TAT recognized that two jurisprudential schools of thought coexisted regarding article 365. One line of authority suggests that a failure to notify the employer before reconsideration automatically invalidates the new decision. The other approach is more flexible, treating the omission as a procedural irregularity that can be cured by affording the affected party a full opportunity to be heard in subsequent revision or contestation proceedings. The parties’ preliminary question was framed within this legal debate: with the lack of notice taken as an admitted fact, what was the correct legal consequence under article 365 LATMP?
However, in TAT-1, the tribunal unexpectedly departed from the parties’ shared admission. Relying on a brief “note évolutive” dated 24 January 2020 from the CNESST’s internal file, the TAT concluded that the employer had been informed of relevant aspects before the reconsideration. The note contained little detail and consisted essentially of a record of a voicemail exchange about the worker’s last day worked, but the TAT treated it as inconsistent with the parties’ admission of no prior notice. On that basis, it held that the condition in the third paragraph of article 365—prior information to persons previously notified—was satisfied. TAT-1 also took the view that it was not bound by the parties’ admission of fact and law. The effect of this reasoning was to sidestep the very preliminary question the parties had brought—namely, how to interpret article 365 LATMP when the CNESST has clearly failed to notify the employer—and instead conclude that there had been no such failure at all.

The judicial review before the Superior Court
Anodisation & Peinture then applied to the Québec Superior Court by way of judicial review (contrôle judiciaire), seeking annulment of TAT-1 and TAT-2. The employer argued that its right to procedural fairness had been violated, specifically the audi alteram partem principle, because the TAT had relied on the internal CNESST note to reject the admission about lack of notice without giving the parties an opportunity to comment on that piece of evidence or adjust their submissions.
The Superior Court first considered the applicable standard of review. While administrative decisions are usually reviewed on a reasonableness standard, the Court noted that when issues of procedural fairness and the right to be heard are at stake, the standard is correctness. The Court situated its analysis within the broader framework of the LATMP and the Loi sur la justice administrative, which both emphasize equity, the real merits of cases, and the duty to permit affected individuals to complete their file and make submissions before adverse decisions are rendered.
The Court reviewed the Baker factors for determining the content of procedural fairness: the nature of the decision and process, the statutory scheme, the importance of the decision to those affected, the claimant’s legitimate expectations, and the tribunal’s own procedural choices. It observed that the TAT functions in a quasi-judicial manner, that its decisions under the Loi instituant le Tribunal administratif du travail are generally final and without appeal, and that the matters it decides—workers’ compensation, labour standards, and occupational health and safety—have significant impacts on individuals’ and employers’ rights. It also emphasized that the parties had legitimate expectations flowing from the agreed preliminary-question procedure that the TAT itself had authorized.

Findings on procedural fairness
Applying these principles, the Superior Court held that the TAT had breached procedural fairness. The core problem was not simply that the TAT concluded it was not bound by the parties’ admission; rather, it was that the TAT did so without warning the parties and without giving them a fair chance to address the documentary evidence it found determinative.
The parties had built their entire preliminary hearing strategy around the admitted fact that the CNESST had not notified the employer before reconsideration. They expressly told the TAT that they would argue only the legality of the reconsideration in light of that admitted lack of notice and would defer any factual or evidentiary debates about the internal CNESST file, including the “note évolutive,” to a later hearing on the merits if necessary. Even Martel aligned himself with the employer on this point, agreeing that the spare internal note could not reasonably be taken as proof that the CNESST had properly discharged its duty to inform the employer.
Despite the centrality of this admission to the defined preliminary question, TAT-1 ultimately treated the note as contradicting the admission and concluded that the condition in article 365’s third paragraph had in fact been met. In doing so, the TAT effectively redefined the scope of the preliminary issue, resolved a factual dispute the parties had chosen to set aside, and relied on a piece of documentary evidence that had not been the subject of submissions or testing at the preliminary hearing. The Superior Court reasoned that had the parties known the TAT intended to disregard the admission and treat the note as decisive evidence of notice, they would have made detailed submissions on the note’s meaning, context, and probative value, and possibly adduced further evidence.
The Court rejected the TAT’s and TAT-2’s position that the tribunal had no obligation to alert the parties it might reject their admission. While acknowledging that a tribunal is not strictly bound by admissions, the Court held that, in this context, fairness required at least informing the parties that the admission might be set aside and inviting submissions on both the reasons for the admission and the alleged contradictory evidence. It also disagreed with TAT-2’s analogy to a trial judge who is not obliged to provide a losing party an opportunity to “repair” a failure of proof after the close of evidence; here, the issue was that the parties had no fair warning of the factual ground on which the TAT ultimately decided the preliminary issue.
The Superior Court therefore found that the TAT had violated the audi alteram partem rule, a foundational principle of natural justice and procedural fairness, by failing to ensure that Anodisation & Peinture knew the decisive evidence it had to meet and had a full and fair opportunity to respond to that evidence.

Outcome and implications
As a remedy, the Superior Court annulled both TAT-1 (the 11 May 2022 preliminary decision) and TAT-2 (the 6 February 2023 revision decision) and returned the matter to the Tribunal administratif du travail to be heard afresh by different members. The Court declined the employer’s request to direct the TAT to treat the admission about lack of notice as conclusively established. Instead, it held that the status and probative force of that admission, as well as the interpretation of article 365 LATMP, should be addressed anew before the TAT, with appropriate procedural directions ensuring that both parties can make full submissions on the evidence and the law. The Superior Court also ordered that the remitted case be assigned to members other than those who rendered TAT-1 and TAT-2, underscoring the importance of both the appearance and reality of impartial reconsideration. Finally, Anodisation & Peinture T.N.M. inc. emerged as the successful party on judicial review and was awarded its costs of justice; however, the judgment does not specify any liquidated amount for those costs or any other monetary award, so the total sum granted in its favour cannot be determined from the decision.