What if you shouldn’t be the person having to bear your employee’s employment injury related costs?

2 December 2019

By Catherine Cloutier, Partner

Occasionally, the Tribunal administratif du travail (“TAT”) determines who has to be bear the costs of an employment injury. The TAT disposed this year inter alia of a case where a teacher suffered an injury trying to open a stiff window in her classroom (Commission scolaire de Laval – and – Alumicor Itée, 2019 QCTAT 2245).

After it determined the evidence presented by the employer cogent, the TAT concluded that the injury was imputable to a third person being the general contractor who proceeded to the windows’ installation, and the Tribunal determined that the costs relating to the injury had to be imputed solely to the file of the latter.

Never heard about the possibility for yourself to also avoid bearing all or part of the costs of an employment injury sustained by one of your employees? Here’s what you have to know to start with.

Section 326 of the AIAOD

When a worker sustains an employment injury, it is established that his employer will have to bear the cost of the benefits associated to that injury (paragraph 1, Section 326 of the Act respecting industrial accidents and occupational diseases (“AIAOD”). This is known as the general principle of imputation. Consequently, that imputation will affect the worker employer’s file at the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) and may also impact his annual payable assessment.

Some exceptions are however provided to that general principle under Sections 326 and 329 of the AIAOD.

In deed, it is stated in the second paragraph of Section 326 that under certain circumstances the costs will be imputed to a third person; the purpose of the Act is to make the employers accountable while not penalizing them. This exception to the general principle of imputation of the costs to the employer’s file however commands a strict reading and will only applies in a limited number of cases.

More specifically, Section 326 will apply in the two following situations.

First, if the accident is attributable to a third person. The employer must then evidence that the occurrence of the accident is predominantly attributable to that third person, in other words that actions or omissions of that person contributed to more than 50% to accident occurrence. Since there is no definition in the Act of the term third person, case law teaches that it might be any person other than the affected worker, his employer and the other workers performing a task for the latter (Commission scolaire de Laval – and – Alumico Ltée, 2019 QCTAT 2245).

In such a case, the employer must establish:

• The third person’s identity;
• The reasons why she is predominantly responsible of the accident;
• The inequity resulting from the general principle being applied in the present context.

On the other hand, it may also be possible to depart from the application of the costs imputation general principle if, without being specifically attributable to a defined third person, the general principle application results in a situation where an employer is unduly burdened. There must then exists an inequity situation that is external to the usual risks that the employer must support according to the field in which he is doing business and the costs associated to that inequity must be proportionally significant compared to the accident costs. For example, one may think of the disruption of a temporary assignment following a personal illness (Boiserie Expert inc., 2006 CanLII 67557 (QC CLP).

In such a case, the employer must establish:

• An inequity being external to the usual risks that the employer must support;
• The financial impacts of the imputation made to his file.

In both those cases, the CNESST may raise on its own initiative such an exemption. If not, the employer may request it in order to have the costs imputed to one, several or all of the units. In such a case, the application must be made in writing and state the reasons justifying the transfer, and it must be filed with the CNESST within the year following the date of the accident (paragraph 3, Section 326 of the AIAOD)1.

This one-year period starts as of the date of the accident, even though the employer is not even aware of its occurrence (Services Matrec inc. 2018 QCTAT 5615). Considering the limitation period, the application will automatically be dismissed in case of failure to act within the prescribed time limit.

Section 329 of the AIAOD

In the case where the worker is already handicapped when his employment injury appears, it is specified under Section 329 that all or part of the costs of the assessment may be imputed to the classification units as a whole.

The CNESST may here also act on its own initiative or at an employer’s request. The application must then be filed in writing before the expiry of the third year following the year of the employment injury. In order to succeed, the employer must establish the worker’s handicap and evidence the existence of a deficiency that departs the biomedical standard as well as the impacts or consequences of that handicap on the occurrence of the employment injury.

Stein Monast will assist you in determining if an exemption applies to a specific case, and hence allow you to avoid a situation where costs that shouldn’t have been imputed to your file were in fact imputed to it, and your assessment affected consequently.

If you have any question on that topic, do not hesitate to contact us.


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