Canada: Psychological Harassment: Is Quebec’s Employment Injury Review Board Also Putting An End To The Duplication Of Proceedings?

In the wake of recent decisions by judges and arbitrators holding that there is res judicata between a decision of the Commission des relations du travail (CRT) (Quebec's labour relations board), or an arbitration award, and a claim filed with the Commission des lésions professionnelles (CLP) (the province's employment injury review board) alleging workplace harassment, the CLP has disallowed a claim by a female worker but this time by drawing on the doctrine of issue estoppel, not res judicata.1

The administrative tribunals2 and, recently, the Superior Court in Durocher c Commission des relations du travail3 are therefore signalling a clear trend aimed at ending the duplication of proceedings based on the same facts and at ensuring the proper administration of justice.

The facts

In this case, the worker, a cashier, had filed a claim with the Commission de la santé et de la sécurité du travail (CSST) (occupational health and safety board) alleging that she had suffered a psychological injury as a result of the behaviour of the head of the employer's security department and an investigator who met with her on April 20, 2011 to discuss suspicious transactions. The CSST and its administrative review division, the Direction de la révision administrative, had dismissed her claim, so the worker brought it before the CLP.

In the meantime, the worker had also filed a workplace psychological harassment complaint with the CRT based on the same events of April 20, 2011. Upon investigating and hearing the case, the CRT found that there had been no workplace psychological harassment and dismissed the worker's complaint.

The employer argued before the CLP that the worker's claim before the CLP should not be allowed because the facts had already been characterized by the CRT. Relying not on res judicata but on issue estoppel, the employer contended that the CLP did not have any jurisdiction to rule again on whether or not there had been psychological harassment in the workplace.

Decision

After analyzing the decisions handed down both by grievance arbitrators and the CRT and the CLP in the matter of res judicata and workplace psychological harassment, the CLP refused to apply this principle.

According to the CLP, while there was identity of parties and cause, there was no identity of legal classification of the facts and therefore no identity of object. The CLP stated that, in this sense, the legal question considered by the two bodies is different: the CRT is required to rule on whether there is psychological harassment in the workplace within the meaning of the Act respecting labour relations, while the CLP is required to rule on whether there is an occupational injury, which is a separate and distinct matter. The remedies provided by the two recourses are also separate and distinct: the recourse before the CRT allows for the worker's reinstatement and the awarding of damages, while the recourse before the CLP relates solely to the provision of necessary care, rehabilitation and the payment of an income replacement indemnity.  

However, the CLP allowed the employer's objection and rejected the worker's claim. To do so, the CLP applied the doctrine of issue estoppel, a branch of res judicata emanating from common law that precludes the relitigation of issues previously decided in another proceeding. Referring to the teachings of the Supreme Court in Boucher v Stelco,4 the CLP writes:

[Translation]

[70] Thus, issue estoppel is a principle applied in administrative law that combines with the principles of res judicata and abuse of process to prevent the duplication of proceedings on the same matter and the risk of conflicting decisions. Its objective is to preclude the relitigation of issues previously decided in another proceeding.  Issue estoppel is invoked to prevent a losing party from bringing before the courts a matter that it has already pleaded unsuccessfully before an administrative tribunal. It is a doctrine of public interest that tends to favour the interests of justice.

[71] There are three conditions that must be met in order to apply the principle of issue estoppel:

1. The issue must be the same as that decided in the previous decision;
2. The previous judicial decision must have been a final decision;
3. The parties or their assigns must be the same in both cases.

(our emphasis)

Conclusion

This decision is yet another indication of how uncomfortable the administrative and civil tribunals are with the duplication of proceedings involving claims of workplace harassment. While some tribunals will apply the principle of res judicata, others will draw on various theories to try to end the abusive use of legal resources.

The doctrine of issue estoppel is a new approach in this area. In our opinion, it shows the level urgency that the higher courts are attaching to the need to draw a clear line with respect to the applicable law. In this regard, it will be very interesting to see how the Quebec Court of Appeal rules in the upcoming Durocher decision, mentioned earlier.

In the meantime, one may ask why it is necessary to make express use of estoppel, imported from common law. Indeed, the CLP could have achieved the same result by using the principle of res judicata and the teachings of the Quebec Court of Appeal in Srougi c Lufthansa German Airlines,5 a decision the CLP does not deal with at all. While it is true that the Act respecting industrial accidents and occupational diseases does not contain any provisions respecting workplace harassment and that the question before the CLP is whether or not there has been an employment injury, the fact remains that before both the CLP and the CRT or the grievance arbitrator, the question being asked generally is factually identical.

Footnotes

1 Pigeon et Sears Canada inc., 2013 QCCLP 1983.

2 Conseil du Québec Unite-Here et Compagnie A (E.G.), D.T.E. 2007T-1999; Association canadienne des employés en télécommunications et Amdocs Gestion de services canadiens inc. (Robert Lachance), D.T.E. 2008T-338; Cargill ltée et Travailleuses et travailleurs unis de l'alimentation et du commerce, section locale 500 (Éric Brépols), D.T.E. 2009T-540; Syndicat canadien des communications, de l'énergie et du papier-SCEP (Association canadienne des employés en télécommunications-ACET) c Amdocs Gestion de services canadiens inc., 2009 QCCS 467; Rajeb et Solution d'affaires Konica Minolta (Montréal Inc), 2011 QCCRT 0397; Gaboury c Province du Québec de l'Union canadienne des Moniales de l'Ordre de Sainte-Ursule, 2011 QCCRT 0550.

3 Durocher c Commission des relations du travail, 2014 QCCS 237.

4 Boucher v Stelco, [2005] 3 SCR 279.

5 Srougi c Lufthansa German Airlines, 2003 CanLII 47967.

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