Occupational health and safety: non-compliance with recommendations issued by the National Institute of Public Health of Quebec in times of pandemic
In the context of the COVID-19 pandemic, the National Institute of Public Health of Quebec (INSPQ) notably issued interim recommendations concerning the construction sector. In 8653631 Canada Inc., the Court of Quebec concluded that the failure of the supervisor of a construction site to comply with the minimum risk control measures provided for in these recommendations constituted a breach of his obligations under section 51 of the Law on occupational health and safety (LSST) and an infringement of article 236 of the same law.
INSPQ recommendations not respected
In May 2020, an inspector from the Committee on Standards, Equity, Health and Safety at Work visited the construction site, including 8653631 Canada inc. was the project manager to verify the implementation of the Law on occupational health and safety. During his checks, the inspector observed many deficiencies in health measures intended to protect workers in the context of the COVID-19 pandemic.
Turcot J. noted that 8653631 Canada inc. failed to follow the interim recommendations issued by the INSPQ. She recalls what these recommendations consisted of:
 The interim recommendations for the construction sector provide that in order to protect the health of their employees, employers are encouraged to promote hand hygiene by making the necessary equipment available to workers.
 As for the frequency of disinfection of the sanitary block and the dining room, disinfection at least twice per shift is recommended. The dining room should also be cleaned before the start of breaks and lunch to avoid any contamination of common areas.
 Under the title environmental health, it is recommended to disinfect the sanitary facilities at least before each shift and the eating areas after each meal.
 Frequently touched surfaces such as tables, counters and doorknobs should be cleaned at a minimum every shift and when visibly soiled. In public places, cleaning should be carried out at least every shift.
Identifying, controlling and eliminating risks: scope of the employer’s obligation
It is more precisely the obligation imposed on employers by paragraph 5 of section 51 LSST that was at issue in this case, namely the obligation to “use the methods and techniques aimed at identifying, controlling and eliminating risks that may affect the health and safety of the worker ”.
Justice Turcot reiterates the scope of this obligation, noting that she is not limited to compliance with a regulation but extends to compliance with standards, common sense and the rules of the art:
 This provision requires the employer to take the necessary measures to protect the health and ensure the safety and physical integrity of the worker. The employer must use the methods and techniques aimed at identifying, controlling and eliminating the risks which may affect his health and safety.
 The Court of Appeal in the judgment Domtar states that this obligation involves doing everything that is humanly logical and reasonable to do, whether or not this is provided for in a regulation, program or document.
 The Court of Appeal also recalls that an employer’s duty is not limited to compliance with the regulations, but that he must also take all necessary and reasonable measures to ensure the objective of the Act.
 Thus, the respect and observance of the various regulations are not enough to eliminate the dangers at the source. The employer must also respect the rules of the art to eliminate the danger at the source.
 In short, section 51 (5) obliges the employer to respect standards, common sense and good practice in order to identify, control and eliminate the risk of exposure to COVID-19.
Good practice in public health
The obligation imposed on employers by paragraph 5 of article 51 LSST therefore extends to compliance with the rules of the art. In this regard, Turcot J. considers that good public health rules are established by the INSPQ. The measures that an employer puts in place must comply with the recommendations issued by this body so as not to endanger the health of workers. The judge points out that these recommendations “become imperative” in the actual context.
In the case of 8653631 Canada Inc., the judge noted that: “Failure to comply with these minimum recommendations constitutes negligence, or at the very least marked recklessness, insofar as their ultimate goal is to prevent more deaths while allowing workers to recover. return to work safely. ” (paragraph 39). She condemned 8653631 Canada Inc. to a fine of $ 1,752.
Committee on Standards, Equity, Health and Safety at Work c. 8653631 Canada Inc. (CQ, 2020-11-12), 2020 QCCQ 6684, SOQUIJ AZ-51722067, 2020EXP-2899, 2020EXPT-1989.