As the CNESST must base its proceedings on values such as equity, merit, and justice, every ruling it makes must be issued in writing and sufficiently motivated. The injured party who finds themselves in disagreement with a decision rendered by the CNESST can react in any of seven (7) ways described at the end of the document in question.
As any application you file must meet a series of statutory requirements, make sure you keep a copy of each and every document you send.
Application for reconsideration
Définition :
Section 365 of the Act allows the Commission to reconsider the merits of its own decisions. Most of the time, the Commission will reconsider any decision that has not been referred to administrative review.
In cases where a ruling was made before a critical fact was known, the Commission may reconsider a decision that has already been entrusted to review.
Deadline :
The party must act within ninety (90) days of the date at which the decision was issued. Should a critical fact become known after the ruling was made, the ninety (90)-day deadline will generally begin to run as of the date of knowledge.
The CNESST must notify all the parties involved before it initiates the reconsideration process – which in any event cannot be used in order to re-examine the evidence presented at the hearing or to submit evidence that would have no bearing on the decision.
Application for review
Définition :
The party who believes they are unjustly impacted by a ruling made by the Commission may ask that it be reviewed. The application can be filed online by means of a form in which the party describes their grounds for review and the specific terms of the ruling they disagree with.
The Commission’s initial decision may be confirmed, reversed, or modified by the department of administrative review. The ruling must be issued in writing, sufficiently motivated, and contain a notice informing the parties that they can, within a specified delay, file an appeal before the Administrative labour tribunal.
Deadline :
Within thirty (30) days of the date at which the Commission’s decision was issued. The delay in question might be extended if the party in default submits serious and credible explanations to the department of administrative review.
Complaint under section 32 of the Act
Définition :
The worker who believes that they are being retaliated against (dismissal, suspension, disciplinary sanctions, etc.) following the exercise of any rights recognized by the Commission may file a complaint based on the provisions of section 32.
Application for challenge
Définition :
Every dispute submitted to the Administrative labour tribunal (ALT) begins with the filing of introductory proceedings that (i) refer to the number of the file in which the challenged ruling was made, (ii) outline the reasons why the ruling is being challenged, and (iii) state the conclusion the disputing party is seeking.
Identify clearly the witnesses you intend to summon at the hearing – particularly if some are expert witnesses.
In order to avoid an application for postponement, comprehensive lists of witnesses must be provided to the court and to all the parties. If you are unsure of whether or not you will summon an expert witness, err on the side of caution and indicate that you probably will.
Deadline :
Within forty-five days of receipt of the decision rendered by the admnistrative review department. Should the delay expire, the worker can still file their introductory proceedings but will be summoned to a hearing pertaining only to that matter. Assuming that the Administrative labour tribunal accepts their explanations, they will be summoned again at a later date to discuss the merits of the case further.
Provided that the worker submits reasonable explanations that do not cause another party significant harm, the ALT can extend any delay and even cancel the penalties associated with missing a deadline.
Consequences :
All rulings made by the Administrative labour tribunal are final, definite, unappealable, and enforceable by the CNESST immediately. The latter must act quickly. Whenever the decision pertains to the retroactive payment of loss of income benefits, the worker must provide their notices of assessment or a series of paycheque stubs. If fees and costs must be reimbursed, the CNESST requires all original invoices and receipts. In either case, interest accrues in favor of the worker.
Conciliation
Définition :
The worker, their employer, and even the CNESST may suggest that conciliation be attempted (prior to a hearing before the ALT) in order to revolve a dispute. Whenever conciliation fails, nothing of what was discussed or written can ever be introduced as evidence before the court.
The conciliator entrusted with a case gets in touch with the parties (or their representatives) in order to learn more about the facts at the centre of the dispute. In most instances, negotiations are conducted through the phone, teleconference, or discussions held with the conciliator directly.
An agreement reached by means of conciliation may sometimes reach beyond the core of the dispute. In the case of a relapse, for instance, the parties may acknowledge the connection between the consequences and the initial cause. In exchange of such acknowledgment, the employer could require that the settlement date, the aftereffects, and the limitations be determined right away so the worker’s ability to return to work is ruled upon. In such a case, the worker’s claim is validated whereas the compensation period (and the employer’s costs) are reduced.
Delay :
There is no deadline to worry about when it comes to conciliation. A party can suggest it at any time between the moment the introductory proceedings are filed and the date at which the hearing must be held.
A similar process may be followed in cases involving IVAC.
Application for review baaed on an irregularity
Définition :
Although the decisions rendered by the ALT are final and unappealable, one of its justices may review or revoke a ruling if a new fact (that could have led to a different outcome had it been known in due time) is discovered. The same applies if a party was unable to be heard or some procedural defect is likely to invalidate the decision.
An application for review based on an irregularity begins with a sufficiently detailed written motion. Once the ALT notifies them of the filing of an application, the parties must respond to it in writing within the next thirty (30) days.
Considering that applications for review or revocation must be drafted in accordance with complex and demanding rules, we strongly recommend that you entrust the task to an attorney specialized in cases involving the CNESST.
Applications for review based on an irregularity are seldom heard, as they represent a rather exceptional procedure that must not be submitted as a disguised appeal. For instance, one would not be allowed to file one in order to introduce evidence they forgot about or to plead the case differently. The same reasoning applies to litigation involving the SAAQ.
Delay :
An application for review based on an irregularity must be filed within a reasonable delay, calculated as of (i) the date at which the disputed ruling was issued, or (ii) the knowledge of the new fact likely to impact the ruling in question.
Consequences :
Any decision rendered in connection with an application for review based on an irregularity must be enforced immediately by either the employer or the CNESST.
Conclusion
As the proceedings and remedies discussed above are all complex and likely to bring about significant consequences, tilt the odds in your favor by speaking with one our devoted experts right now, for free.
(Nothing in the foregoing must be interpreted or construed as providing a legal opinion.)
