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A Remedy Without Legal Effects? Hypothetical Remedies in a Global Pandemic

The COVID-19 pandemic has disrupted workplaces around the world, including with respect to health measures in the workplace. To meet their occupational health and safety obligations, employers had to adapt to health guidelines that were constantly changing. In this context, physical distancing, personal protective equipment, and cleaning and disinfection measures were put in place. In some cases, employers incurred significant costs. If an employer with an establishment in Quebec failed to adhere to these health guidelines, they could even be subject to criminal complaints and fines.[1]

But what happens when workers and/or the union disagree with the employer or the CNESST about the risks and dangers that the workplace poses to their health? If the situation that the workers and/or the union were complaining about has changed by the time the court is called upon to consider the matter, will it rule on the dispute between the parties? This blog post discusses hypothetical remedies[2] in the management of occupational health and safety, and in particular how they can serve as an effective preliminary means of curtailing litigation.

Hypothetical Remedies

By definition, a hypothetical remedy arises when the issues raised by the dispute will not result in a resolution that affects, or may affect, the rights of the parties.[3] In other words, when an event alters the parties’ relationship such that any ruling on the dispute will have no practical effect on the rights of the parties, the remedy will be deemed moot or abstract. In these situations, the court may refuse to decide the matter.

Certain guidelines, dictated by the landmark Supreme Court decision in Borowski, must guide the court when it is called upon to consider the mootness of a dispute.[4] A two-step analysis is required. We first have to ask whether the concrete, tangible dispute has ended, rendering the issue entirely moot. If so, the court may then exercise its discretion and still hear the case if, for example, it has a practical effect on the rights of the parties, if there are any remaining collateral issues, or if it is a matter of great public interest.

Hypothetical remedies are not exclusive to any one area of law. However, when it comes to occupational health and safety, this concept can prove useful. Three recent decisions illustrate how the concept of hypothetical remedy is well suited to occupational health and safety, particularly with respect to the right of refusal, protective re-assignment, and the implementation of preventive and protective measures in the context of the COVID-19 pandemic.

  1. Right of Refusal in Relation to COVID-19

In Ville de Mirabel v. Andrade,[5] a patrol officer was of the opinion, back in April 2020, that his work environment posed a health hazard and therefore invoked his right of refusal under section 12 of the Act respecting occupational health and safety (the " AOHS ").[6] Being immunocompromised, he considered that his working conditions put him at risk of contracting the coronavirus. An inspector from the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the " CNESST ") confirmed that there was in fact a danger that justified exercising the right of refusal. The employer, being of the opinion that it had adopted all the necessary measures to provide a safe work environment and that the working conditions were normal for the worker, subsequently contested that decision with the Administrative Review Division of the CNESST ("ARD") and the Administrative Labour Tribunal (the " Tribunal "). In June 2020, the worker’s doctor determined that he was fit to return to his regular job since new scientific data showed that the risks related to COVID-19 were more acceptable and that he could return to his job. 

Before the Tribunal in October 2021, the worker raised a preliminary argument based on the mootness of the dispute. He argued that, in light of his return to regular work in June 2020, there was no further interest in rendering a decision.

The Tribunal accepted the worker's preliminary argument and declared the employer's challenges inadmissible. The Tribunal found that there was no longer a debate, since it was unlikely that a similar situation would recur, given growing scientific evidence on the matter. The Tribunal further found that there was no uncertainty as to the rights and obligations of the parties, the worker having returned to his regular job. In particular, the Tribunal noted that even if the virus were to re-emerge, it would be in a different form that could not be predicted at that point. Therefore, a judgment in that case would not be useful for the future or change the law between the parties.

  1. Preventive Withdrawal in the Context of COVID-19

In Cadieux v. Coopérative des techniciens ambulanciers de la Montérégie,[7] asthmatic paramedic who was born with the condition was fearful of the possible consequences of COVID-19 for his health. Given this, in April 2020, he obtained a medical report in which his doctor indicated that he was vulnerable and that he should be removed from his workplace or should telework for an indefinite period. The worker therefore applied for protective re-assignment under section 32 of the AOHS, being of the opinion that his work exposed him to a contaminant dangerous to his health. The CNESST dismissed the application and declared that the worker was not entitled to protective re-assignment. Nevertheless, the worker stopped working until October 2020, when he was re-reassigned to other duties with his employer. He returned to his regular duties in June 2021.

At the hearing in October 2021, the worker maintained that he was entitled to protective re‑assignment and therefore to income replacement benefits. However, between April and October 2020, the worker continued to receive his regular salary from the employer.

In this case, it was the Tribunal that raised the admissibility of the challenge on the basis that the dispute was then moot, holding that the worker did not seem to have suffered any damage, having been paid during the entire time he was off work. The Tribunal found that in this case, "there can be no question here of actual harm within the meaning of the case law, since the employer had re-assigned the worker away from his workplace, as he requested, and continued to pay him” [our translation]. The Tribunal therefore determined that the dispute was no longer current, that there was no legal interest in having the substantive issue decided, and that the worker's challenge was inadmissible.

  1. Prevention Measures in the Context of COVID-19

Lastly, in Fédération des employées et employés de services publics (FEESP-CSN)v.Autobus des Cantons Inc.,[8] between October 2020 and February 2021, two CNESST inspectors issued intervention reports related to health measures that they asked the employer to adopt in the workplace. Following some discussions and corrective actions, in February 2021, the CNESST stated that it was satisfied with the measures the employer had adopted and issued a final intervention report.

The Fédération des employées et employés de services publics (FEESP-CSN) (the " Union "), disagreed with the reports issued by the CNESST and especially with the final report. The Union decided to challenge them through the ARD and then with the Tribunal. According to the Union, the physical distancing rules were not being adhered to on school buses. Through its challenges, the Union asked the Tribunal to force the employer to install a physical barrier between the driver and the students on its school buses or, as an alternative, to cordon off the seats behind the bus driver.

The Tribunal held two initial hearing days in October 2021, and two additional hearing days were scheduled for July 19 and 20, 2022. In July 2022, the employer raised the hypothetical character of the appeal, particularly in view of the fact that COVID-19 was no longer considered to be a public health emergency and the health measures imposed by government authorities had been lifted. The Union believed that, because the COVID-19 pandemic was still a public-health danger with cases on the rise, the appeal was not moot and that a decision would have a practical effect on the rights of the parties.

Following a review of the evidence submitted by the parties, the Tribunal found that the health measures at the beginning of the pandemic were of little relevance given that the state of emergency had been lifted since the dispute arose. The pandemic, like the prevention measures, was bound to evolve over time. The Tribunal was therefore of the view that a decision on the merits of the case would have no effect on the rights of the parties and no practical consequences: it therefore would not be useful. The appeal was therefore moot and there was no reason for the Tribunal to exercise its discretion. Regarding the evolving nature of the situation, the Tribunal also noted as follows:

[34] This is because there was no continuing adversarial debate due to the dramatic change in context at the employer’s workplace since Fall 2020. Furthermore, despite the likelihood of a future reoccurrence, the context would be completely different from what exists today. It is therefore likely that this reoccurrence would call for protective measures and/or a work structure that are different from those that could have been called for in the context that existed in the Fall of 2020. It should also be noted that the evidentiary process is not complete and will require at least two more days of hearings, including the administration of expert evidence. Lastly, if there is any legal uncertainty with respect to the rights and obligations of the parties, a decision by the Tribunal on the context that existed in the Fall of 2020 will certainly not dispel it, given the highly evolving nature of the present situation. In short, the Tribunal fails to see how it would be in the interests of the parties to render a decision in this matter. It therefore seems inappropriate for the Tribunal in this case to examine a question that has become theoretical. [emphasis added; our translation]


In short, it is clear from the decisions that, in occupational health and safety matters, the Tribunal will look at the situation in the workplace at the time of the hearing and not when a dispute arises. Only if the situation has a concrete effect on the rights of the parties, for example if it is likely to recur in the same form in the future, will the Tribunal exercise its discretion. The Tribunal also recognized that the state of the COVID-19 pandemic is likely to change over time and that the issues at the beginning of the pandemic are quite different from today’s.

The notion of mootness is therefore all the more relevant when the dispute relates to occupational health and safety, as moot remedies can serve as a powerful preliminary means of dismissing what is likely to be a long and time-consuming dispute involving such elements as the right of refusal, protective re-assignment, and the implementation of preventive and protective measures during a pandemic.

McCarthy Tétrault's Labour and Employment Group regularly advises employers on occupational health and safety matters. For more information, please contact me Caroline-Ariane Bernier or any other member of our team.

*Special thanks to Ms. Melissa Berdjani, a McCarthy Tétrault co-op student during Fall 2022, for her significant contributions to this blog post.

[1] See, for example, Commission des normes, de l'équité, de la santé et de la sécurité du travail v. 8653631 Canada inc, 2020 QCCQ 6684 v.Commission des normes, de l'équité, de la santé et de la sécurité du travail v. 9023-4436 Québec inc, 2022 QCCQ 5845.

[2] Moot remedy and abstract remedy are other ways of referring to the idea of hypothetical remedy.

[3]Borowski v.Canada (Attorney General), [1989] 1 SCR 342, p. 353.


[5]Ville de Mirabelv.Andrade, 2021 QCTAT 5109.

[6]Act respecting occupational health and safety, CQLR, c. S-2.1, s. 12.

[7]Cadieuxv.Coopérative des techniciens ambulanciers de la Montérégie, 2021 QCTAT 5608.

[8]Fédération des employées et employés de services publics (FEESP-CSN)v.Autobus des Cantons Inc., 2022 QCTAT 3947.



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