Executive Summary: Key Legal and Evidentiary Issues

• Classification of spa massage therapists as either self-employed workers or deemed “workers” under article 9 of the Loi sur les accidents du travail et les maladies professionnelles (LATMP).
• Reasonableness of the Tribunal administratif du travail’s decisions (TAT-1 and TAT-3) under the Vavilov standard, focusing on whether TAT-1 was affected by a substantive defect (vice de fond) under article 49 LITAT.
• Binding effect of the Superior Court precedent Spa Le Finlandais on the TAT and the tribunal’s failure to justify any departure from that interpretation of article 9 LATMP.
• Proper interpretation of “activités similaires ou connexes” in article 9 LATMP, and rejection of non-textual criteria such as whether activities are “essential” to the survival of the business.
• Distinction between similar and connected activities in evaluating whether self-employed massage therapists’ services are integrated into the employers’ spa operations.
• Scope of judicial review remedies: annulment of TAT-3 and TAT-1, declaratory relief deeming the therapists “workers” under article 9 LATMP, remittal to a different TAT member on statutory exceptions, and an order of costs without a specified monetary amount.

Facts of the case

The dispute arises from spa businesses operating under the names Sauna Le Scandinave inc. and Scandinave Les Bains Vieux Montréal inc., which primarily offer hydrotherapy services and also provide massage therapy to their customers within their spa facilities. Massage services are delivered exclusively by individuals considered self-employed (“travailleurs autonomes”), and the employers have no salaried massage therapists on staff. Clients who wish to receive a massage make their request to an employee of the spa and pay the spa directly. The employer then transfers to the self-employed massage therapist the sums corresponding to the massage services rendered. The Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) considered that, in substance, these massage therapists should be treated as “workers” for the purposes of the workers’ compensation regime, despite their contractual description as self-employed.

Procedural background and prior decisions

On 18 September 2019, CNESST issued decisions for each of the two spa employers, concluding that the massage therapists, although self-employed under article 1 LATMP, are deemed to be “workers” under article 9 LATMP and thus must be included in the employers’ wage base (“masse salariale”) for LATMP purposes. The employers sought administrative review of these CNESST decisions, but on 13 July 2020 CNESST rejected their review requests. The employers then appealed to the Tribunal administratif du travail (TAT). On 4 August 2021, in decision TAT-1, the TAT allowed the employers’ challenges and determined that the massage therapists remained self-employed workers excluded from the application of the LATMP. CNESST responded by filing, on 2 September 2021, a request for internal revision at the TAT under article 49 of the Loi instituant le Tribunal administratif du travail (LITAT). It alleged that TAT-1 was affected by a substantive or procedural defect (vice de fond ou de procédure), but the parties agreed that only article 49, paragraph 3—defect of substance or procedure—was in issue. On 15 March 2022, another TAT formation, in decision TAT-2, granted CNESST’s revision request. The employers sought judicial review of TAT-2 before the Superior Court. In March 2024, the Superior Court concluded that TAT-1 breached procedural fairness (audi alteram partem), allowed the employers’ judicial review, and remitted the case to the TAT so that a different member could decide CNESST’s revision request anew. On 3 July 2024, the new TAT decision, TAT-3, rejected CNESST’s revision application, effectively confirming that TAT-1 was not affected by a substantive defect and leaving in place the classification of the massage therapists as self-employed and outside the LATMP. CNESST then brought the present judicial review before the Superior Court, challenging TAT-3.

Legal framework and key statutory provisions

The case is anchored in the interpretation of the LATMP’s core definitions and the deeming rule in article 9. The statute defines “travailleur” (worker) as a natural person performing work for an employer, for remuneration, under a contract of employment or apprenticeship, subject to specific exclusions such as certain domestic workers, professional athletes whose sport is their principal income, corporate directors, and certain family-type or intermediate resources. “Travailleur autonome” (self-employed worker) is defined as a natural person who carries on business on their own account, alone or in partnership, and has no worker in their employ. Article 9 LATMP then creates a deeming mechanism: a self-employed worker who, in the course of their business, performs for a person activities similar or connected (“similaires ou connexes”) to those carried on in that person’s establishment is deemed to be a worker of that person, except where specific exceptions apply—such as when the worker performs the activities simultaneously for several persons, in a reciprocal services arrangement with another self-employed worker, for several persons in short-term jobs while supplying their own equipment, or where the activities are only sporadically required by the client. The LITAT also governs this dispute. Article 49 LITAT allows the TAT to revise or revoke its own decision when there is a newly discovered fact that could have changed the outcome, when a party could not be heard for valid reasons, or when a substantive or procedural defect is of a nature to invalidate the decision. In this case, only the third ground—vice de fond ou de procédure—was invoked. On judicial review, the Superior Court applies the Vavilov framework for reasonableness. A decision must be underpinned by coherent reasoning and must be justified in light of the applicable legal and factual constraints, including the statutory language, prior case law, and the tribunal’s mandate.

The Spa Le Finlandais precedent and the meaning of “similar or connected” activities

A central legal constraint in this case is the Superior Court’s earlier decision known as Spa Le Finlandais. In that case, the Court interpreted article 9 LATMP in a similar spa context involving self-employed massage therapists. The Court held that the phrase “activités similaires ou connexes” requires comparing the nature of the self-employed worker’s activities with those carried on in the establishment—looking at whether they are of the same nature or closely related—not at whether the activity is economically essential or primary for the business. Spa Le Finlandais rejected the criterion of activities “essential to the survival of the business” as incompatible with both the text and purpose of article 9. The Court there emphasized that even if an activity is secondary or ancillary in revenue terms, it is still an “activity” carried out in the establishment, and article 9 captures self-employed workers whose tasks integrate into those activities, unless a statutory exception applies. In the present matter, the Superior Court notes that Spa Le Finlandais offers a clear and binding interpretation of article 9 and of how to analyze “similar or connected” activities. It underlines that administrative decision-makers like the TAT are bound by such precedent and can only depart from it if they lawfully distinguish it, show that it was decided per incuriam, or demonstrate a significant change in law, circumstances, or evidence that fundamentally shifts the debate.

Reasonableness review of TAT-3 and the finding of substantive defect in TAT-1

Applying Vavilov, the Superior Court first clarifies that its role on judicial review is not to rehear the case on the merits, but to examine whether TAT-3 is reasonable as a decision addressing the revision of TAT-1 under article 49 LITAT. In assessing CNESST’s arguments, the Court considers two main criticisms. The first is that TAT-3 allegedly “filled in” or repaired the sparse reasoning in TAT-1, contrary to the prohibition on supplementing tribunal reasons that Vavilov reinforced after Newfoundland Nurses. The Court accepts the principle that a reviewing body cannot rewrite reasons but may read them generously and interpret what is actually there. On the facts, it concludes that TAT-3 did not cross this line in a way that alone would render it unreasonable. The second, and ultimately decisive, criticism is that both TAT-1 and TAT-3 fail to respect the binding authority of Spa Le Finlandais. The Court points out that Spa Le Finlandais dealt with the same statutory provision, article 9 LATMP, in an almost identical context of spa-based massage therapists. In Spa Le Finlandais, the Court found that self-employed massage therapists performing services for the spa’s clients within the establishment clearly engaged in activities similar or connected to those of the employer. TAT-1 and TAT-3, in contrast, treated the absence of salaried massage therapists at the employers’ spas as a basis to conclude that there was no similarity or connection in activities. The Superior Court finds this distinction unreasonable, because article 9 explicitly contemplates both “similar” and “connected” activities, and the “connected” limb captures services that are integrated into, or closely related to, the spa’s overall offering, even if the employer does not itself employ staff in that specific role.

Deeming the massage therapists to be workers and remitting the exceptions issue

The Court holds that, properly applying article 9 in line with Spa Le Finlandais, the massage therapists at issue are self-employed workers whose activities are clearly connected to those carried on in the employers’ establishments. They offer massage services on the premises, through the employers’ booking and payment system, to the employers’ clientele, as part of the spa experience marketed by the businesses. The therapists’ services thus integrate into the employers’ operations in a way that satisfies the “connexes” requirement, even if no salaried massage therapists are on staff. As a result, the Court concludes that TAT-1 is substantively unreasonable and affected by a vice de fond, and that TAT-3 is also unreasonable because it failed to recognize that defect and to set aside TAT-1 under article 49 LITAT. The Superior Court therefore annuls TAT-3, declares TAT-1 invalid for substantive defect, and itself declares that the massage therapists are self-employed workers deemed to be “workers” under the first paragraph of article 9 LATMP, since they exercise activities connected to those of the spa establishments. However, the Court notes that the TAT has not yet examined whether any of the statutory exceptions in article 9 apply to exclude these therapists from the deeming rule. Given the TAT’s specialized role, the Court remits the file to be heard by another administrative judge to determine whether any such exception is engaged.

Outcome, successful party and monetary consequences

In its formal conclusions, the Superior Court allows CNESST’s application for judicial review, annuls the TAT’s 3 July 2024 decision (TAT-3), declares the 4 August 2021 decision (TAT-1) invalid due to a substantive defect, and declares that the massage therapists working for the spa employers are self-employed workers deemed to be workers under article 9 LATMP because they carry out activities connected to those exercised in the establishments. The matter is returned to the Tribunal administratif du travail so that a different member can decide whether any of the article 9 exceptions apply. CNESST, as the applicant in judicial review, is thus the successful party. The judgment awards “frais de justice” (court costs) in its favour but does not specify any quantified amount of damages, compensation or costs; the total monetary figure cannot be determined from this decision alone.