The case, Dionne v. Commission scolaire des Patriotes, involves a substitute teacher, Marilyne Dionne, who was at the early stages of her pregnancy when she signed an employment contract for a few days of work with the respondent, a school board.
Prior to signing the contract, Dionne was diagnosed with a condition that prevented her from entering a classroom. (Her fetus was vulnerable to an otherwise harmless virus that was prevalent in schools.) She then received a letter from the province’s health and safety commission (the Commission de la santé et de la securité du travail) informing her that she was entitled to receive maternity leave benefits due to her condition.
The school board challenged the decision, arguing that Dionne’s inability to enter a classroom negated the contract.
Three separate rulings at the province’s workplace safety tribunal, the Quebec Superior Court, and the Quebec Court of Appeal supported the school board’s argument that Dionne’s inability to fulfil her contractual duties from the outset rendered the contract null and void and that she therefore had no working relationship with the school board and no entitlement to benefits.
The Supreme Court’s decision stands in stark contrast to these decisions. “A contract was formed when D accepted the School Board’s offer to supply teach and therefore became a ‘worker’ in accordance with the definition in the Act. The legislated right of a pregnant worker to withdraw from an unsafe workplace cannot be used to conclude that her Preventive Withdrawal negates the formation of the contract of employment. D’s pregnancy was not an incapacity that prevented her from performing the work, it was the dangerous workplace that prevented it.”
Where the lower courts ruled on whether a contract had been formed, the top court took a much broader approach as it ruled the onus for providing a safe workplace falls on the employer, even in circumstances where the complications of pregnancy prevent a worker from performing her basic duties. In other words, Dionne was within her rights to expect her employer to accommodate her condition. If it couldn’t, she was entitled to “preventive withdrawal” benefits.
Pierre Brun, a litigator at Melançon Marceau Grenier et Sciortino, represented Dionne before the Supreme Court. He’s thrilled, and a little surprised, at the decision: “I wouldn’t say it was a long shot, but as you might have noticed, we lost all the way up to the Supreme Court. It’s the last victory that counts, I suppose.”
Brun says that, unlike the lower courts, the Supreme Court took an expansive approach that took into account the purpose of the province’s occupational health and safety legislation and underlying aspects of discrimination.
In Quebec, he says, workplace and safety laws allow workers, including contract workers, to withdraw from a workplace, with benefits, if it’s dangerous and no safe alternative work can be found.
“This law is designed to provide some kind of financial security to workers when they have to withdraw from a workplace,” says Brun. “In doing so, the burden is not on the workers; it’s on the employer to provide a safe work environment.
“That’s even more true regarding pregnant women where the court said it doesn’t make sense to put the burden on the pregnant woman and to make her choose between her own safety and the safety of the child to be born and the environment of the workplace.”
Yann Bernard at Langlois Kronstrom Desjardins, who represented the school board, was also surprised by the ruling, which he says ignores the strong indications that Dionne entered into a contract knowing she had no way of fulfilling its terms.
“She had no intention to fulfil the contract. What the Supreme Court says is, ‘Look, for the specific purposes of getting an indemnity from the CSST, that doesn’t matter. She had no intention to perform her duties under the contract, but it’s part of the deal.’ It was something surprising to us and something that all the other courts did not buy, but the Supreme Court did.”
Bernard also points out that, as a contract worker, Dionne — unlike teachers on salary — had no obligation to the school board. If the environment was dangerous to her and her fetus, she could easily have sought work elsewhere.
While it’s yet to be determined how the province’s health and safety commission will calculate maternity leave benefits for contract workers in these circumstances, the Supreme Court’s ruling could have significant ramifications for Quebec-based employers, says Bernard. “If it means that as soon as we offer something to the person, the person has that kind of relationship with the employer until the end of the pregnancy. The cost may be very important for the whole province, not only in school boards but in other contexts, too.”