Canada: Aggressive Interventions By “Presumed Harassers”: The New Face Of Psychological Harassment Hearings In Quebec?

In two recent cases, the courts in Quebec established the parameters of the role played by a "presumed harasser" in the context of a psychological harassment hearing.

In a decision rendered on October 22, 2004, the Quebec’s Commission de la santé et de la sécurité du travail (hereinafter "CSST") held that the depression suffered by the employee in the case at bar, Mr. Jean-Guy Bouchard, constituted an employment injury. Mr. Bouchard alleged that his depression was a result of the psychological harassment inflicted upon him by his supervisor, Mr. Anthony McDonald.

Mr. Bouchard’s employer appealed this decision to the Commission des lésions professionnelles (hereinafter the "CLP"). Considering the facts alleged by Mr. Bouchard, Mr. McDonald filed a motion for aggressive intervention and thereby sought to be acknowledged as a party to the case. In support of his motion, Mr. McDonald submitted that the facts reported by the CSST in its decision infringed his right to safeguard his honour and reputation. In addition, Mr. McDonald alleged a violation of his fundamental right to be heard, given that the CSST did not consider his version of the facts before it rendered its decision. In light of those reasons, Mr. McDonald asked the CLP to consider him as a party to the case which in turn would allow him to be represented during the hearing, to assist during all parts of the hearing, to present his own proof and arguments, and to cross-examine the witnesses.

Counsel for Mr. Bouchard and the CSST objected to the motion presented by Mr. McDonald. They pleaded that the rights vested under the Act respecting industrial accidents and occupational diseases² are conferred without regard to any personal liability and therefore, the litigation was strictly between the plaintiff, the employer and the CSST, as only they could be concerned by the financial impact of the decision.

Ultimately, the CLP decided that although Mr. McDonald would be an important witness in the case, the motion should be dismissed since Mr. McDonald was not directly impacted by the decision to be rendered. More specifically, the CLP concluded that the decision would only determine the plaintiff’s right to indemnification and could not contain any type of finding pertaining to Mr. McDonald’s conduct.

Nonetheless, the CLP did recognize that the facts alleged by Mr. Bouchard might affect Mr. McDonald’s career and reputation. Consequently, referring to the rules of procedural equity, the CLP gave Mr. McDonald the opportunity to assist at the hearing and to be represented. His counsel was allowed to examine him and plead with respect to the proof affecting the reputation of his client. However, the CLP did not grant him the right to cross-examine the witnesses nor to present additional witnesses.

Mr. McDonald appealed the decision of the CLP to the Superior Court and the Court of Appeal. Both tribunals confirmed the reasoning of the CLP, since the steps taken by the CLP in order to ensure the protection of his right to be heard were deemed adequate.

The Marois case, released about the same time as the McDonald case, was the object of much attention from the media. Ms. Ginette L’Heureux filed complaints against her employer, the Quebec Human Rights Commission, alleging psychological harassment from its president, Mr. Pierre Marois. The latter filed a motion for aggressive intervention demanding to be acknowledged as a party to the case since he occupied a public position, and for the safeguard of his honour and reputation.

The Labour Relations Commission first stated that under the provisions of the Labour Standards Act,⁴ only the employer could be concerned by a decision with respect to psychological harassment. Therefore, the tribunal rejected the arguments in support of the motion and denied Mr. Marois the right to intervene.

Mr. Marois filed a motion for review before a panel of three commissioners of which the majority ultimately concluded in his favour. For the majority, the role of the Labour Relations Commission was to determine whether there was psychological harassment. Since Mr. Marois was the only one accused of such conduct, the tribunal would render a decision concerning Mr. Marois directly. Moreover, his honour and reputation would be seriously affected if the complaints were to be allowed. The majority distinguished the present case from the McDonald case, as the latter was rendered under a "no fault" regime. The right to intervene as a party to the case was therefore granted to Mr. Marois.

Ms. L’Heureux filed a motion for judicial review to the Superior Court. The Court dismissed the motion, but clearly indicated that this was an exceptional case, given Mr. Marois’ position.

Although the Superior Court clearly noted the uniqueness of the Marois case, these two recent decisions have the potential to influence the conduct of psychological harassment hearings. As practice shows, such hearings tend to be long and complicated. Needless to say, the presence of a third party, either vested with total or limited power to intervene, will not simplify the proceedings.

Many psychological harassment complaints are filed on a monthly basis in Quebec. Hence, the case law in this area is in constant evolution. It remains to be seen what future developments lie ahead with respect to the rights of a "presumed harasser".

1. McDonald c. Arshinoff et Cie Ltée 2007 QCCA 575

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