For employers assessed at a personalized rate or under the retrospective plan, requests to share or transfer part of the costs of a workers’ compensation claim are often a last-ditch attempt to reduce its financial impact. But what happens when an employee’s employment ends, resulting in the resumption of income replacement benefits (IRB)?
Section 326 of the LATMP allows an employer to ask the CNESST to transfer the cost of IRB paid to a worker when such payment results in an injustice to the employer. This is particularly the case when a temporary assignment is interrupted due to the onset of another medical condition, unrelated to the employment injury, that would justify a new work stoppage. If this interruption of the temporary assignment, due to the presence of an intercurrent condition, generates a significant proportion of the costs charged to the employer’s file, it may constitute an injustice giving rise to a transfer of costs.
In the event of retirement, resignation, or dismissal, are we dealing with an injustice that allows for the transfer of charges? There has long been a controversy in the case law of the Administrative Labor Tribunal (TAT) on this issue.
For a majority within the TAT, resignation, retirement, or dismissal are considerations related to labor relations. As such, they constitute risks inherent in employers’ activities. However, while termination of employment is an inherent risk in an employer’s activities, it cannot be considered a source of injustice, leading to the rejection of an employer’s transfer request.
On the other hand, a minority opinion offers a different interpretation of such a situation, opting instead for an analysis that takes into account the specific facts related to the termination of employment, which could therefore lead to a determination that it is unfair. As you can see, this is an opinion that favors employers.
In the case of Construction Benoît Moreau Inc., the TAT examined the jurisprudential controversy and chose to adhere to the minority view, much to the delight of the undersigned! In adhering to the minority view, the TAT specified that this approach allowed it to analyze the behavior of the employer and the employee in order to attempt to determine the reasons leading to the termination of employment. For the TAT, there is no question of allowing a transfer of liability if the employer has been deficient in its management of labor relations, for example.
In this case, the worker began temporary assignment one month after sustaining his work-related injury. However, a few weeks later, he resigned, resulting in the resumption of IRR for two months. His case was consolidated shortly thereafter with no permanent impairment or functional limitations. Thus, approximately two-thirds of the IRR paid to the worker in connection with this injury was paid directly as a result of his resignation! He even told the CNESST that he had been thinking about resigning for some time.
The TAT’s analysis led to the conclusion that this resignation had nothing to do with any issues with the employer. The TAT therefore classified the resignation as a purely personal decision, unrelated to the work injury, since the worker had already begun considering it before the work injury occurred. The TAT then determined that there was an injustice to the employer and concluded that it had generated a significant proportion of the costs charged to the case, thereby granting the transfer of charges requested by the employer.
In the event of an IRR recovery due to termination of employment, I suggest that you file a request for a transfer of the charge, arguing that the termination of employment represents an injustice to the employer. However, please note the following. The employer has one year from the date the reason arises (the start of the IRR recovery due to the end of employment) to file a request with the CNESST for such a transfer!
Need help drafting your allocation transfer request? Feel free to contact me and I will be happy to help you optimize your requests to reduce the allocation of your files!
Footnotes:
1. There are several ways to calculate the “significant proportion” in order to demonstrate unfairness. Often, we will want to calculate the duration of the reason giving rise to the transfer versus the total duration of the consolidation. Sometimes this will be done by evaluating the costs. Several calculation methods are permitted, and it is necessary to evaluate them in order to find the one that is most appropriate given the particular circumstances of the case.
2. 2025 QCTAT 3585.
3. Sécurité-Policiers Ville de Montréal, 2018 QCTAT 4030, para. 66.
