Quebec judge rules at-home injury while doing job remotely is a 'workplace injury'

As questions swirl around the topic of remote and “hybrid” workplaces thanks to COVID-19, a Quebec administrative judge has ruled that, under certain circumstances, an accident outside the office can be considered a “workplace” injury for which an employee should be compensated.

The ruling by judge Patrick Bouvier appears to be the first in the province to confirm that an injury that occurs during work hours in the home of an employee teleworking due to COVID-19 is eligible for worker’s compensation.

“What is interesting about this case is that it came at a time when people are working more from home, says Patrick Essiminy, head of the Employment & Labour Group at Stikeman Elliott LLP. “With so many people working out of a home office these days, the question is ‘Can my home office be deemed my workplace?’ And we’re clearly in the situation now where employers must consider that someone who is working from home regularly and in an organized way could be considered to be in their workplace.”

However, Essiminy adds that the “fact pattern” of these types of cases will likely all be quite different, so there won’t necessarily be a “clear path” to judging all accidents during work hours as workplace accidents.

On Dec. 3, 2021, the Quebec Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) dismissed the appeal of employer Air Canada contesting the admissibility of an occupational injury suffered by one of its call centre employees, Alexandra Gentile-Patti. She was working remotely from home and injured herself as she went downstairs for her lunch break.

The CNESST agreed that she had suffered an occupational injury, though she was not working when she fell.

However, Air Canada appealed the CNESST decision to accept Gentile-Patti’s claim. The company argued the accident did not occur in the course of work since there was no connection between the activity of walking to get food and Gentile-Patti’s job. Air Canada also claimed it did not have effective control over the employee’s activities and how work premises are organized. Because Gentile-Patti was not in her home office at the time of the accident, there was a “presumption of privacy,” and Air Canada had no effective control from the employer.

However, Gentile-Patti claimed her accident constituted an unforeseen and sudden event that occurred during the course of her work. Going to lunch includes, among other things, a “comfort activity” that benefits the employer and the employee.

In this case, Philippe Bouvier had to determine whether Gentile-Patti’s accident was an event that occurred “in the course of work” or not.

Essiminy says that there are two ways to prove that you were injured at work. One is that any injury that happens in the workplace while the employee is working is presumed to be an employment injury.

The other way to prove a workplace injury is to demonstrate that the injury resulted from sudden and unforeseen events that happened out of the course of the workday. It does not have to be directly related to the actual performance of work, but there is “enough connection” that it could be deemed to be “arising out of the course of work.”

He notes that there have been cases where someone getting injured in the food court of an office building was considered not to be a workplace injury, while in another case, someone getting injured on the road driving into the workplace was deemed to have been injured “in the course of work.”

In his summary of the Gentile-Patti case, Bouvier wrote: “Air Canada argues that this fall on the stairs did not occur during work, since Ms. Gentile-Patti was no longer in her professional sphere, but rather in her personal sphere, because the fall occurs as she heads out to eat.” He added the airline “claims there is no connection between this activity and work.”

However, Bouvier disagreed. He wrote that Gentile-Patti’s injury fit the definition of a “sudden and unexpected event that occurred during work.”

He also noted that many recognized and compensated work accidents in Quebec have occurred in places that employers have no control over, such as hotel rooms, convention halls and parking lots managed by third parties.

He also determined that the only reason Gentile-Patti was taking the staircase from her office to get lunch at the time was due to the fact she was bound to a work schedule imposed by Air Canada.

The tribunal’s original decision emphasized that a work-related accident is an unforeseen and sudden event that occurs in the course of or in connection with work. The Act respecting Industrial Accidents and Occupational Diseases does not provide a separate framework for analyzing unforeseen and sudden events, whether it occurs in the worker’s private residence or the employer’s premises.

The tribunal decision that Bouvier was considering used an analytical framework established by case law to determine whether a sudden and unforeseen event occurs “in the course of employment.” This framework is based on the following criteria:

• the location of the event; 
• the time of the event;
• the remuneration of the activity performed by the worker at the time of the accident; 
• the existence and degree of authority of the employer or the subordination of the worker;
• the purpose of the activity carried out at the time of the event, whether it is incidental, accessory, or optional to the working conditions and
• the relevance of relative usefulness of the worker’s activity in relation to the performance of the work.

The tribunal paid particular attention to the last three criteria. As well, Bouvier wrote that, according to case law, greater attention must be paid to the criteria of the purpose of the activity carried out at the time of the event.

Specifically, the activity must be sufficiently work-related to allow a finding that it is not a personal activity. The tribunal must determine the purpose of the activity carried out by the employee when the event occurred.

In this case, the tribunal declared that Gentile-Patti suffered an occupational injury, Bouvier said. “The context in which the accident occurred confirms that it was an unforeseen and sudden event that occurred during work.

The judge noted that if Gentile-Patti was at home on the morning of the event, it was to fulfill her professional obligations to Air Canada. Moreover, she must follow a precise schedule established by Air Canada, and her breaks are, therefore, part of the work schedule.

There is also a link between Gentile-Patti disconnecting from the call centre network and her injury. “When she moved around, when she could take a break was all determined by the employer, and she was there on that day, at that time, because her schedule was from 6am to 1pm. As part of her work organization, she had to take those breaks that specific time.”

Essiminy notes that there “could very well be a different conclusion” in a situation in which someone who works from home is not given a specific schedule to adhere to during the day and is based on other criteria, such as task completion and meeting deadlines. Without a work schedule, the break might not have been the responsibility of Air Canada.

Finally, the tribunal had also concluded that there is no reason to question whether the activity of eating lunch falls within the professional or personal sphere of Gentile-Patti and whether Air Canada derives some benefit from it. The fall occurred during her walk to have lunch and not while eating.

As for Air Canada’s argument that it could not manage Gentile-Patti’s work life, the tribunal did not accept that her home is part of her private life during her work hours and cannot be managed. The tribunal said this was a compensation case, not a case dealing with Air Canada’s obligations under the province’s Occupational Health and Safety Act.

The tribunal ruled that there are situations where a worker may suffer an employment injury without the employer being able to manage the site, for example, in a convention hall.

Essiminy says this case “is interesting, because it raises the question about how do you create clear boundary between the workstation in the home and everything else? The bathroom. The stairs. The kitchen.” Employers will need to reflect on these issues to develop policies and guidelines.