Seven months into the COVID-19 pandemic, Alexandria Gentile-Patti was working from home as a telephone customer service agent for Air Canada. At the time, many Canadians brought their workplaces home to weather the pandemic. On September 25, 2020, Mme Gentile-Patti took her lunch break and ventured downstairs. After a few steps, she lost her footing and fell-sustaining an injury. For this harm, she claimed workers' compensation.

Air Canada contended that the fall had no connection to her employment; i.e., she was at home and she was not working when she fell. Ultimately, the Québec Administrative Labour Tribunal ("Tribunal Administratif Du Travail") ruled that Mme Gentile-Patti was indeed entitled to compensation under the provincial framework for employment injuries. To be clear, the injury at home was a workplace accident for compensation purposes. It occurred only moments after she disconnected from work to take a break and eat.

The COVID-19 pandemic has changed where and how thousands of Canadians work. According to Statistics Canada, nearly a third of employees aged fifteen to sixty-four performed most of their work out of their homes from 2020 to 2021.¹ This figure is more than seven times higher than it was in 2016.²

This tribunal decision out of Québec signals that the law concerning working in virtual workplaces is still developing. The decision also shows that employees need to be protected from harm wherever and however they work. Even as measures to combat the spread of COVID-19 are rolled back, many changes to the employment landscape may be here to stay. The law will need to continue to evolve in response to these developments.

Background

A workplace insurance system provides benefits to employees who have been injured at work or who have workplace illnesses. A workplace insurance system is also called workers' compensation. In Québec, the Act respecting industrial accidents and occupational diseases provides the framework under which compensation is provided for employment injuries.³ The compensation aims to provide "physical, social and vocational rehabilitation" for an injured worker.⁴ Other provinces have similar schemes. In Ontario, the Workplace Safety and Insurance Act, 1997 outlines the statutory requirements for employees to qualify for workplace insurance benefits.⁵

In Ontario, an accident at work includes, "a chance event occasioned by a physical or natural cause ... arising out of and in the course of his or her employment."⁶ In Québec, an accident at work consists of an "unforeseen and sudden event" which arises "out of or in the course of work."⁷

The Québec Case of Air Canada et Gentile-Patti

Mme Gentile-Patti fell down her stairs in her private residence in the middle of her workday. She disconnected from her workstation to take a lunch break-ensuring that there would be no further incoming customer calls.⁸ She left her dedicated work area on the second floor to go to a separate space to eat.

Her employer, Air Canada, asserted that Mme Gentile-Patti was not working when she fell. Quite literally, she disconnected from work immediately prior to the accident. Further, Air Canada had no control whatsoever over Mme Gentile-Patti's home environment. The accident occurred during her private life (or in her "personal sphere") which was not connected to her work.⁹ In sum, Air Canada contended that Mme Gentile-Patti's injury was not the result of a workplace accident and that she should not be entitled to workers' compensation.

Criteria to determine whether a work accident occurs during the performance of work have been developed by Québec jurisprudence. These factors include location, time, remuneration for the activity, degree of authority exercised by the employer over the employee, purpose of the activity, whether the activity was incidental, and connection of activity to the performance of work.¹⁰ The Tribunal noted that these criteria are to be considered together, with a particular focus on the connection of the purpose of the activity to the performance of the work.¹¹

The Tribunal noted that there was no distinction drawn by the statute when an accident occurs in the employer's establishment, in the employee's private residence, or elsewhere.¹² For example, workplace accidents have occurred in a hotel room, convention halls, and parking lots.¹³ There was nothing to suggest that a personal residence should be specifically excluded from this analysis.

In Mme Gentile-Patti's case, the very reason why she was at home at that time was because it was required by her employer.¹⁴ Even though Mme Gentile-Patti was on break in her home, it was integral to the way she worked. The schedule-which contemplated taking breaks-was a key feature of how the work was organized. The Tribunal noted that a high degree of precision about the specific activity at the very moment the accident occurred (i.e., going to eat), was not necessarily determinative.¹⁵

The Tribunal concluded that Mme Gentile-Patti's fall down the stairs-of her private residence while going to perform a personal activity, while on break from working-was nonetheless a workplace accident for compensation purposes.

Discussion and Conclusion

As employees invite more of their work lives into their homes-out of either necessity or convenience-the distinction between work and personal spheres becomes less clear. In light of the rapid changes to the Canadian employment landscape in the face of COVID-19, the law is evolving to adapt to these new realities. Accidents which may have an initial appearance of being purely of personal character may qualify as workplace accidents.

However, it remains to be seen how this Québec tribunal decision will influence or be received in Ontario. Employers in Ontario have a statutory duty to safeguard the health and safety of their employees pursuant to the Occupational Health and Safety Act.¹⁶ By law, an employer must take every reasonable precaution to maintain a safe working environment.¹⁷ But it remains to be seen what steps employers could reasonably take to protect employees in their own homes. This uncertainty is all the more pronounced when the theoretical limits of what constitutes a home workplace are not well-defined.

Mme Gentile-Patti was injured near where she was working, while she was not working. The fact that the Tribunal found a sufficient nexus between the accident and her work suggests that the Tribunal contemplates a very large sphere where work-"adjacent" activities could be considered work activities. For more flexible work arrangements, even more of employees' time-and even more of the places they go-could be considered part of their work sphere.

In an era where a third of Canadian employees are performing most of their work at home, and where more and more activities could be considered performed "in the course of employment," the law will need to respond by clearly articulating certain limits.

"This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs."

Footnotes 

1 Statistics Canada, Working from home during the COVID-19 pandemic, April 2020 to June 2021 (Ottawa: Statistics Canada, 4 August 2021).

2 Ibid.

3 Act respecting industrial accidents and occupational diseases, CQLR c A-3.001, s 1.

4 Ibid.

5 Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Schedule A.

6 Ibid, ss 2(1), 13(1).

7 Gentile-Patti, supra note 1 at para 10 ("Un accident du travail est constitué d'un événement imprévu et soudain qui survient par le fait ou à l'occasion du travail").

8 Ibid at para 7.

9 Ibid at paras 9-10.

10 Plomberie & Chauffage Plombec inc et Deslongchamps, CALP 51232-64-9305, 17 January 1995, B Lemay, cited by Gentile-Patti, supra note 1 at para 11.

11 Tremblay et Société des Alcools du Québec, CLP 287024-62B-0604, 21 February 2007, N Blanchard, at para 27 cited by Gentile-Patti, supra note 1 at para 12.

12 Gentile-Patti, supra note 1 at paras 11, 14.

13 Ibid at para 16.

14 Ibid at para 18.

15 Savard et Centres jeunesse Montérégie, 2021 QCTAT 2659 (CanLII) at para 21, cited by Gentile-Patti, supra note 1 at para 19.

16 RSO 1990, c O.1.

17 Ibid, s 25(2)(h).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.