2014 QCCA 85, 2014 QCCA 85

Lloyd c. Commission des lésions professionnelles 2014 QCCA 85 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023567-134 ( 500-17-070530-129 ) MINUTES OF THE HEARING DATE: January 16, 2014 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. GUY GAGNON, J.A. MANON SAVARD, J.A. APPELLANT MAXWELL LLOYD In person RESPONDENT COUNSEL COMMISSION DES LÉSIONS PROFESSIONNELLES Me Émilie Lessard (absent) VERGE BERNIER INTERVENANT COUNSEL DOUGLAS HOSPITAL INSTITUTE Mtre Karine Spénard MOTION FOR LEAVE TO APPEAL BEYOND THE DELAYS

Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING The hearing of the motion took place on January 13, 2014. By the Court: Judgment – see next page. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] Having inscribed in appeal as of right from a judgment of the Superior Court rendered on March 25, 2013 by the Honourable Madam Justice Hélène Le Bel that dismissed his application to judicially review a decision of the Commission des lesions professionnelles rendered on January 18, 2012 that dismissed Mr. Lloyd's complaint to the CSST declaring it to be "inadmissible", he now seeks leave to appeal pursuant to

article 523 C.C.P . His motion to this Court has been brought within the six-month statutory delay, although there has been some delay in bringing it on for hearing. [ 2 ] Mr. Lloyd's complaint was brought pursuant to

section 32 of An Act respecting industrial accidents and occupational diseases . [1] That provision is to the following effect: 32. No employer may dismiss, suspend or transfer a worker or practice discrimination or take reprisals against him, or impose any other sanction upon him because he has suffered an employment injury or exercised his rights under this Act. A worker who believes that he has been the victim of a sanction or action described in the first paragraph may, as he elects, resort to the grievance procedure set down in the collective agreement applicable to him or submit a complaint to the Commission in accordance with

section 253. 32. L'employeur ne peut congédier, suspendre ou déplacer un travailleur, exercer à son endroit des mesures discriminatoires ou de représailles ou lui imposer toute autre sanction parce qu'il a été victime d'une lésion professionnelle ou à cause de l'exercice d'un droit que lui confère la présente loi.

Le travailleur qui croit avoir été l'objet d'une sanction ou d'une mesure visée dans le premier alinéa peut, à son choix, recourir à la procédure de griefs prévue par la convention collective qui lui est applicable ou soumettre une plainte à la Commission conformément à l'article 253. [ 3 ] In order to initiate such a complaint, Mr. Lloyd was obliged to follow the procedure set out in

section 255 of the Act , which provides as follows:

255. If it is shown to the satisfaction of the Commission that the worker was the object of a sanction or action referred to in

section 32 within six months of the date on which he had suffered an employment injury or the date on which he had exercised a right conferred on him by this Act, there is a presumption in his favour that the sanction was imposed on him or the action was taken against him because he had suffered an employment injury or had exercised that right. In the case of the first paragraph, the employer must prove that the sanction was imposed or the action taken in respect of the worker for another good and sufficient reason. 255. S'il est établi à la satisfaction de la Commission que le travailleur a été l'objet d'une sanction ou d'une mesure visée dans l'

article 32 dans les six mois de la date où il a été victime d'une lésion professionnelle ou de la date où il a exercé un droit que lui confère la présente loi, il y a présomption en faveur du travailleur que la sanction lui a été imposée ou que la mesure a été prise contre lui parce qu'il a été victime d'une lésion professionnelle ou à cause de l'exercice de ce droit. Dans ce cas, il incombe à l'employeur de prouver qu'il a pris cette sanction ou cette mesure à l'égard du travailleur pour une autre cause juste et suffisante. [ 4 ] Mr.

Lloyd's judicial review proceedings allege a workplace injury at the Douglas Hospital going back to early 1997, as a result of which his employment was interrupted, his job changed and eventually terminated. Since then, he has assiduously attempted to rejoin the workforce, not only at the Douglas Hospital, but elsewhere as well.

His singular determination in this respect, however, has not been rewarded by his having secured employment at the Douglas Hospital, whether, according to the employer, because his physical limitations preclude him from some positions for which he has applied, or because there are no positions available for which he might be qualified.

He contends in this respect being the victim of discriminatory treatment by the Douglas Hospital. [ 5 ] In essence, the CLP held that because of the delays incurred since his initial workplace accident in early 1997 and a recurrence later that year, he could not avail himself of the benefit of the presumption set out in

section 255 of the Act , thus obliging him to prove on a balance of probabilities that he had been the victim of reprisals or discriminatory conduct on the part of the Hospital. [ 6 ] His main point before the CLP was that since he has all the necessary aptitudes to hold a position at the Hospital, it must follow that the reason he has been denied employment is related to his workplace injury, or, that he had previously initiated a complaint to the Quebec Human Rights Commission in 1995 alleging workplace discrimination. [ 7 ] In a nutshell, the CLP considered that, based on the foregoing, and the fact that the failure to interview Mr.

Lloyd or offer him employment was not discriminatory conduct for the purposes of

section 32 of the Act , he had not met the necessary evidentiary standard to have his complaint maintained. [ 8 ] In her judgment, the motions judge concluded that the requirements for curial intervention as discussed in New Brunswick v. Dunsmuir [2] had not been satisfied insofar as the reasoning of the CLP on the merits was concerned. [ 9 ] As the Court explained to Mr.

Lloyd at the hearing, obtaining leave in these circumstances requires him to show that his proposed appeal is one that involves "…a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents / une question de principe, une question nouvelle ou une question de droit faisant l'objet d'une jurisprudence contradictoire…" [3] [ 10 ] Unfortunately, Mr. Lloyd's application does not satisfy any of the foregoing criteria, as sympathetic as his circumstances may be.

FOR THESE REASONS, THE COURT : [ 11 ] DISMISSES the motion for leave to appeal beyond the delays, without costs; [ 12 ] DISMISSES the appeal inscribed as of right on May 7, 2013. ALLAN R. HILTON, J.A. GUY GAGNON, J.A.

MANON SAVARD, J.A.