Quick Hits

• Once a pregnant employee produces a medical certificate attesting that her working conditions may be physically dangerous to her unborn child, or to herself by reason of her pregnancy, the employer must actively evaluate and, where feasible, offer safe duties; immediate withdrawal of the employee from work is a last resort.
• Employers must be able to articulate and, if challenged, prove the concrete steps taken and the reasons a reassignment was not possible.
• A refusal to reassign—if not properly justified—can constitute a “sanction or discriminatory measure,” opening the door to a reprisal claim.

In Ville de Québec v. Ouellet, a pregnant police sergeant asked her employer, the City of Québec, to assign her safe duties rather than be pulled off the job under the workers’ compensation program known as Program for a safe motherhood, under which the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) provides an income replacement indemnity. The city refused. When the Administrative Labour Tribunal (ALT or Tribunal) later dismissed her reprisal complaint for lack of jurisdiction, the Superior Court of Québec found the Tribunal’s reasoning “unreasonable” and quashed that decision. The Court of Appeal has now dismissed the city’s appeal, confirming that an employer must make a genuine, documented effort to find safe work before defaulting to preventive withdrawal and income-replacement benefits.

The judgment emphasizes that the preventive withdrawal mechanism is first and foremost a preventive measure intended to keep workers on the job when it can be done safely. While employers are not guarantors of a successful reassignment, they are required to seek options and to explain—transparently—why a reassignment is impossible. Failure to do so can expose the organization to a retaliation complaint under s. 227 of the Act respecting occupational health and safety (OHSA).

Arguments on Appeal

In reviewing the ALT’s dismissal of the employee’s reprisal complaint, the Court of Appeal addressed four principal grounds advanced by the city and explained why each was insufficient in law.

First, the city contended that the Supreme Court of Canada’s decision in Dionne dealt exclusively with the question of worker status and that any reference to preventive reassignment under the OHSA did not state a binding legal principle. The Court of Appeal disagreed, emphasizing that Dionne provides an authoritative statement of the OHSA’s overarching purpose: reassignment is the legislatively preferred mechanism for ensuring an employee’s health and safety during pregnancy or breastfeeding. By treating Dionne’s guidance on reassignment as optional, the ALT applied the wrong legal test, rendering its decision unreasonable.

Second, the city relied on a purely textual reading of sections 40 and 41 of the OHSA, noting that an employee “may request” preventive reassignment and “may stop working” if none is offered, and from this phrasing inferred the absence of any employer obligation to accommodate. The Court of Appeal held that such a literalist approach is incompatible with the modern principle of statutory interpretation, which requires courts to read the words of a statute in their entire context and consider the statute’s remedial purpose. When the legislative debates and the overall structure of the OHSA are considered, it becomes evident that withdrawal from work is intended as a last resort; the employer must first make reasonable efforts to reassign the employee to safe duties. The obligation is one of means rather than of guaranteed result, but it is nevertheless a positive duty that the ALT was obliged to recognize.

Third, the city invoked the Program for a safe motherhood, asserting that the guide confirms reassignment is optional. The Court of Appeal noted that this program simply restates the statutory scheme: while an employer is not required to produce a reassignment at all costs, it must actively seek one. Administrative guidelines cannot override legislation or judicial interpretation. Consequently, reliance on the guide did not relieve the employer of its statutory duty, nor did it justify the ALT’s failure to analyze whether the city had discharged its obligation to look for suitable alternative work.

Finally, the city argued that section 227 of the OHSA—which prohibits reprisals against employees who exercise any right under the act—could not apply because a refusal to reassign is not a “sanction.” The Court of Appeal rejected that submission, observing that section 227 protects employees from adverse consequences arising from the exercise of any OHSA right, including the right to preventive reassignment. Whether the employer’s refusal to reassign constitutes a sanction is a factual determination reserved for the ALT on the merits; however, the Tribunal erred in declining jurisdiction at a preliminary stage.

Having disposed of the city’s objections, the Court of Appeal affirmed the Superior Court’s judgment and remitted the matter to the ALT to adjudicate, on the evidence, whether the city’s conduct amounted to a prohibited reprisal under section 227 of the OHSA.

Conclusion

Ville de Québec v. Ouellet clarifies that preventive withdrawal is not the automatic, default solution when a pregnant employee faces workplace hazards. The employer must first try to find suitable, hazard-free work, and must be prepared to justify its conclusion if no such work exists. The decision aligns with the preventive, worker-retention focus of the OHSA and draws a clear litigation roadmap: inadequate reassignment efforts can translate into s. 227 liability. Québec employers may want to revisit their maternity accommodation protocols, ensuring robust reassignment searches, meticulous records, and transparent communication—well before the next request for reassignment is brought to their attention.