Act respecting labour standards Chapter IV - Larbour standards (Section 39.1 to 97)
Chapter IV - Larbour standards (Section 39.1 to 97)
Division V.0.1 - Absences Owing to sickness, an organ or tissue donation, an accident, domestic violence, sexual violence or a criminal offence (Section 79.1 to 79.6)
The second paragraph of section 79.1 applies if it may be inferred from the circumstances of the event that the employee’s serious bodily injury is probably the result of a criminal offence.
However, an employee may not take advantage of such a period of absence if it may be inferred from the circumstances that the employee was probably a party to the criminal offence or probably contributed to the injury by a gross fault.
2007, c. 36, s. 6.
When the circumstances concerning the event that caused a serious bodily injury to the employee allow for the presumption that the event involved the commission of a criminal offence, the employee having suffered the serious bodily injury may benefit from the absence stipulated in the 2nd paragraph of section 79.1. It is thus necessary to determine, in light of the proven facts, if they correspond to the factual description of a criminal offence. Hence, it is not necessary that the victim wait for the author of the criminal offence to be convicted. Consequently, as in the case of a civil matter, the mere preponderance of probabilities only needs to be established, unlike in the case of criminal law which requires evidence of the commission of the criminal offence.
Moreover, if the same circumstances tend to show that the employee was a party to the criminal offence or that he contributed to his serious bodily injury through his gross fault, he will not be able to benefit from the absence stipulated in the 2nd paragraph of section 79.1.
While each case must be analyzed on its own merits, it should be pointed out that this notion of gross fault is assimilated with gross carelessness or disregard on the part of the person who is a party to the criminal offence. As mentioned by authors L. Doyon, C. Groux, M.-C. Lefebvre and M. Murray under the direction of K. Lippel, in their work entitled L’indemnisation des victimes d’actes criminels : une analyse jurisprudentielle, Cowansville, Éditions Yvon Blais, 2000, p. 59: "This notion, taken from civil law, requires the examination of the victim's behaviour but also of the foreseeability of the consequences of his conduct. Whereas the disproportionality of the crime in relation to the seriousness of the fault committed by the victim may justify the acceptance of the claim, the seriousness of the consequences of the criminal offence should not, in itself, be a factor”.