Canada: Duplication Of Proceedings In A Psychological Harassment Case Receives Quebec Court Of Appeal's Seal Of Approval

By a two-to-one majority, the Quebec Court of Appeal recently ruled1 that a finding of the Commission des lésions professionnelles (CLP) according to which a worker had not been the victim of psychological harassment and thus did not suffer an employment injury within the meaning of the Act respecting industrial accidents and occupational diseases (IAODA) did not constitute even implicit res judicata for purposes of the worker's claim of psychological harassment before the Commission des relations du travail (CRT) or a grievance arbitrator applying the Act respecting labour standards (LSA).

The Court of Appeal has thereby overruled a well-established line of authority among grievance arbitrators,2 who have readily accepted preliminary objections based on res judicata in cases involving psychological harassment. The same line of authority has also gained favour with the CLP3 and the CRT4 in recent years and has even been confirmed once by the Quebec Superior Court.5

As a result of the Court of Appeal's decision, employees who believe they have been the victim of psychological harassment can bring a claim before the CLP alleging an employment injury and, based on the same facts, a claim before the CRT (or a grievance arbitrator) alleging harassment. Unfortunately, such duplication comes at a significant cost to employers and, where employees do not benefit from free representation, also to employees.


The appellant, a nurse holding a management position, filed a claim with the Commission de la santé et de la sécurité au travail (CSST) after being placed on sick leave by her doctor. She claimed that she had suffered a psychological injury as a result of her work, more particularly following a meeting with her boss. Both the CSST and the CLP dismissed her claim, ruling that the evidence did not point to psychological harassment and thus no employment injury had occurred.6

Contemporaneously with her CSST claim, the worker filed complaints of wrongful dismissal and psychological harassment before the CRT. Those complaints were stayed until the CLP had ruled on the matter of employment injury. Having been rebuffed by the CLP, the worker sought to have her claim before the CRT heard.

The CRT allowed the employer's objection of res judicata and dismissed the worker's claim, stating that it was bound by the CLP's finding that no psychological harassment had occurred.7

Ruling on an application for judicial review by the worker, the Superior Court confirmed the CRT's decision, saying that it was not unreasonable for the CRT to have applied the principle of res judicata.8

Before the Court of Appeal

In its majority decision, the Court of Appeal reversed the Superior Court's judgment and the CRT's decision, finding that res judicata did not apply in this case.
Writing for the majority, Justice Bélanger discussed the specific roles given to administrative tribunals and the relative flexibility they have in applying rules of evidence and procedure. The Court thus implied that administrative tribunals should be circumspect in applying the principle of res judicata.

After reviewing the relevant provisions of the IAODA and the LSA, the Court determined that the cause and the object of the claim were not identical, thus failing to satisfy two of the essential requirements for a finding of res judicata.

The Court found that the object of the claim before the CLP was to seek recognition of an employment injury, whereas the object of the claim before the CRT was to seek recognition of the employee's right to a workplace free of harassment and record the employer's failure to provide such a work environment.

As regards cause, the Court said that the CLP's role was to determine whether the situation experienced in the workplace gave rise to an employment injury as defined in the IAODA, regardless of fault, whereas the CRT had to determine whether the employee was a victim of psychological harassment, a concept that is defined only in the LSA, and, if so, whether the employer took steps to put a stop to it.

While acknowledging several times that the CLP's decision provided a partial answer to the question the CRT was to rule on, the Court of Appeal rejected the application of implied res judicata, according to which where there is an intrinsic relationship between the reasons for a decision and the resulting order, res judicata also applies to the reasons. Thus, where the legal characterization of the facts is the same (whether or not there was harassment), notwithstanding the different objects of the proceedings, that characterization is binding on a second tribunal examining the same facts.

In setting aside the application of implied res judicata, the Court of Appeal drew a parallel with the discretionary application of the common law concept of issue estoppel. However, Justice Bélanger also made it clear that adjudicators have virtually no discretion in matters of psychological harassment. In fact, the Court found that, given the CRT's exclusive jurisdiction in matters of psychological harassment, it should have simply dismissed the employer's objection of res judicata. It is therefore difficult to envisage a situation where the CRT could exercise its discretion other than by dismissing an objection of res judicata.


In light of the foregoing and unfortunately for employers, there will continue to be duplicate proceedings based on allegations of workplace harassment and identical facts.

Nonetheless, a glimmer of hope remains. We believe that the Court of Appeal's reasons for judgment open the door for an appeal to the Supreme Court. Moreover, Justice Giroux's dissenting opinion suggested that it was not unreasonable to apply the principle of implied res judicata and that the Superior Court's decision was therefore founded.

Not only is there the possibility of an appeal to the Supreme Court, but the legislator will likely be under pressure to amend the statutes concerned in order to avoid such duplicate proceedings. That could involve amending the IAODA to specify that the CLP has jurisdiction to determine whether there has been psychological harassment and whether it has resulted in an employment injury, and not merely whether the facts, regardless of how characterized, have given rise to such an injury.

Meanwhile, the solution for employers may be found in the Act to group the Commission de l'équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal, which is to come into force on January 1, 2016. This new law will result in the merger of the CLP and the CRT. In fact, s 19 of the act provides that matters in which the issues in dispute are substantially the same or could fittingly be combined may be joined. So an employer could apply to have an employee's proceedings based on the same allegations of fact under both the IAODA and the LSA heard together by a single adjudicator or by two adjudicators sitting together.


1 Durocher c Commission des relations du travail, 2015 QCCA 1384.

2 See for example 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; Métallurgistes Unis d'Amérique, section locale 9400 et Host International, D.T.E. 2010T-28.

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

4 See Grenier Gaboury c Province du Québec de l'Union canadienne des Moniales de l'Ordre de Sainte-Ursule, 2011 QCCRT 0550; Rajeb c Solutions d'affaires Konica Minolta (Montréal) inc., 2011 QCCRT 0397.

5 Syndicat canadien des communications, de l'énergie et du papier – SCEP c Amdocs Gestion de services canadiens inc., 2009 QCCS 467.

6 Durocher et Centre de jeunesse de Montréal, 2008 QCCLP 5569; internal review dismissed: 2010 QCCLP 591.

7 Durocher et Centre de jeunesse de Montréal, 2011 QCCRT 0571.

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

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.