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CCCA_V3No4_Col-MillerThom-FIN.qxd:CCCA_V1No2_Col-LabrEmpl-V1.qxd 11/23/09 9:47 PM Page 39 Legal Update – Miller Thomson LLP Quebec’s psychological harassment legislation: New rights, little recourse n June 1,2004,a new section dealing with be treated by an objective and neutral person. harassment is no longer a taboo subject for Opsychological harassment was incorporat- Whenever employers become aware of workers and employers in Quebec.A survey ed in the Quebec Labour Standards Act such behaviour,they must play an active role, conducted in April 2009 by the firm CROP (“QLSA”). The introduction of a remedy investigate and take reasonable actions in for the Ordre des conseillers en ressources against psychological harassment in the QLSA order to make it stop and impose the appro- humaines agréés (CRHA) revealed that 81 was a turning point in labour legislation in priate sanctions in the circumstances. per cent of workers are aware there is a law Quebec. It introduced a new approach to an In order to establish and prove psychologi- in Quebec which gives them recourse if they emerging reality which created much contro- cal harassment, the alleged victim must are victims of psychological harassment. versy. Making this recourse available and demonstrate the presence of all the elements Eight out of 10 workers would not be afraid accessible to victims of workplace psycholog- contained in the definition of section 81.18 of to file a complaint against their employer if ical harassment was a first in North America. the QLSA. they believed they were victims of psycho- Psychological harassment is defined in the Case law in Quebec has established over logical harassment. As of June 1st, 2009, QLSA as any vexatious behaviour in the form the years that a psychological harassment 10,095 complaints for psychological harass- of repeated and hostile or unwanted conduct, claim is difficult to prove. (Centre hospitalier ment were received by the LSC. Ninety-five verbal comments,actions or gestures that affect régional deTrois-Rivières (Pavillon Saint-Joseph) v. per cent of complaints involved repeated an employee’s dignity or psychological or Syndicat professionnel des infirmiers (ères) deTrois- behaviours and in 73 per cent of the cases,at physical integrity and that result in a harmful Rivières, [2006] R.J.D.T. 397 (T.A.); Bangia v. least one of the persons named was in a man- work environment for the employee.A single Nadler Danino senc, D.T.E. 2006T-818 agement position. Sixty-three per cent of serious incidence of such behaviour that has a (C.R.T.); Breton v. Compagnie d’échantillons complaints filed and received were made by lasting harmful effect on an employee may also National ltée, D.T.E. 2007T-55 (C.T.).) The women. Eighty-six per cent of the com- constitute psychological harassment. complainant must present documented proof, plaints have been settled; 35 per cent are set- A complaint alleging psychological a credible version of the alleged harassment, tled through the LSC’s mediation service. harassment must be filed with the Quebec and must corroborate any testimony with Finally, 79 per cent of complaints filed Labour Standards Commission (“LSC”) independent witnesses. The difficulty lies in with the LSC were finalized in less than six within 90 days of the last incidence of the making the distinction between psychological months. Only 911 complaints were trans- offending behaviour. The LSC investigates harassment and stress or pressure at work or ferred to the Labour Relations Board for complaints filed by workers alleging psy- conflict or misunderstanding. hearing and final decision. Of these, 723 chological harassment. When examining a psychological were settled,81 per cent of this number after The legislation provides that every harassment complaint, the LSC will take a an out-of-court settlement. employee has a right to a work environment global perspective and take into account Undoubtedly, case law in Quebec con- free from psychological harassment. It also the point of view of the alleged victim. cerning psychological harassment will contin- stipulates that employers must take reasonable The victim's point of view will be assessed ue to evolve in the next five years and will action to prevent psychological harassment comparing it to the standard of a "reason- give practitioners, employers and workers and, whenever they become aware of such able person" placed in a similar situation. alike a clearer picture of this recourse. Until behaviour,put a stop to it.An employer has a The intention of the harasser is not perti- then, it seems that in spite of the presence of legal obligation to prevent and correct any nent when the LSC is examining a complaint this recourse since 2004,psychological harass- type of psychological harassment conduct in for psychological harassment. However, if the ment claims are not easily granted nor are the the workplace. Employers in Quebec are claim is granted and the employer is ordered indemnities awarded very significant. advised to adopt an internal policy prohibit- to pay punitive and moral damages to the vic- ing psychological harassment and ensure that tim, the amount granted will be more signif- Veronica Mollica is an associate in the Montréal this policy is known to all employees.They icant if the effects of psychological harassment office. She is a litigator specializing in administra- should also implement an internal system were in fact intentional. tive law and labour relations. (vmollica@ where complaints can quickly and efficiently Five years later,it seems that psychological millerthomsonpouliot.com) HIVER 2009 CCCA Canadian Corporate Counsel Association 39