Canada: Collaboration Between The CNESST And The CDPDJ Regarding Discriminatory Harassment: What Every Employer Needs To Know

On June 20, 2019, the Labour standards, equity, and health and safety Board (Commission des normes, de l'équité, de la santé et de la sécurité du travail, the "CNESST") and the Human Rights Commission, (Commission des droits de la personne et des droits de la jeunesse, the "CDPDJ ") issued a press release to the public1 announcing that a collaboration agreement (the "Agreement") had been concluded between them.2

Context

The CDPDJ deals with discrimination and/or harassment complaints based on the following prohibited grounds under the Quebec Charter of Human Rights and Freedoms3 (the "Charter"):

  • race
  • colour
  • gender
  • gender identity or expression
  • pregnancy
  • sexual orientation
  • civil status
  • age (other than to the extent provided by law)
  • religion
  • political convictions
  • language
  • ethnic or national origin
  • social condition
  • handicap or use of means to compensate for the handicap.

For its part, the CNESST, deals with "psychological harassment" complaints filed by non-unionized employees, regardless of motive. Thus, harassment under the Act Respecting Labour Standards4 (the "LSA") is a concept that is less limited than that of harassment under the Charter. Currently, there is a great majority of employees who feel that they are victims of work-related harassment and regardless of the cause, they file complaints solely with the CNESST.

The Agreement indicates that the CNESST and the CDPDJ decided to work jointly in dealing with work-related harassment complaints.

Agreement in Force

The Agreement, signed by the Minister of Labour in April 2019, is officially in force since June 20, 2019. While awaiting to see how it will actually be applied in reality, lets consider some of its more salient aspects.

Objectives Sought

It is to our understanding that the Minister of Labour wishes to change things, as the Agreement aims primarily to:

  • better educating victims so they are fully informed of their rights and recourses with respect to both organizations;
  • improve the interventions the effectiveness of both organizations in their respective fields;
  • increase the sharing of information between the two organizations, which will permit the coherence of their actions.

Main Terms and Comments

  • Improve information to complainants. If an individual files a complaint for work-related psychological harassment that is not eligible under the LSA or if the complaint also involves a discriminatory conduct, the CNESST will inform the complainant of the recourses available before the CDPDJ.

    It can safely be assumed that the CNESST will undertake a preliminary analysis in this regard. The work done by the analysts will thus go beyond the capacity of the LSA, as they will have to identify and take a preliminary position on the allegations of discrimination in virtue of the Charter.

    Such a preliminary analysis does not appear to be imposed upon the CDPDJ. In fact, the CDPDJ will inform the complainant who considers himself or herself a victim of work-related discriminatory harassment, of the possibility of filing a recourse before the CNESST where:

    i. the complaint is not based on a ground prohibited by the Charter;
    ii. the CDPDJ deems it appropriate to do so for any other motive.

    In sum, by this process, there appears to be a greater risk for the employers regarding a multiplication of recourses, and that, due to a great power given to organizations, that will be entitled to judge whether or not a complaint may be filed before another organization, in the event where the complainant consents to the transfer of the complaint.
  • Concurrent complaints. If one of the organizations notices that a complaint based on the same facts has also been filed with the other organization, said organization must notify the other organization at the earliest convenience, subject to the complainant's consent. However, the Agreement is silent regarding the next steps that will be undertaken. It is therefore not excluded that the two complaints would proceed in parallel.

    Given that the recourses before the CNESST and the CDPDJ, at first glimpse, may seem similar, it is imperative to note that the grounds for the complaint and the applicable burdens of proof do in fact differ.

    Nonetheless, we can expect the possibility of conflicting judgments betweenthe Administrative Labour Tribunal and the Human Rights Tribunal. As well, there is a potential riskof double compensation for damages provided for under the two laws. Moreover, considering thatthe delays for hearing from one tribunal to another may vary, it will be interesting to see if,in practice, it would influence the choice of recourses, as well as to how the files are managed.
  • Transfer of complaints filed with the CNESST alleging a discriminatory conduct. Following an investigation conducted by the CNESST, establishing discrimination against the claimant, and upon the latter's consent, the CNESST will transfer the complaint form to the CDPDJ, pursuant to ensuring that it contains no information allowing witnesses to be identified, along with its decision on pursuing the matter. However, the CNESST investigation report will not be provided to the CDPDJ. It will be to the complainant's discretion to file a complaint with said organization.

    The Agreement does not specify to whom, within the CNESST, will be given the authority and discretion to decide on the opportunity of transferring the complaint to the CDPDJ.

Potential impacts and other considerations

  • Multiplication of recourses and anticipated additional expenses. The possibility of the multiplication of recourses before the CNESST and the CDPDJ can be expected, forwhich case it would entail additional costs for the employers with respect to the preparation of the file and hearing, whereas the two organizations offer the complainants the services of a lawyer free of charge.
  • Managing deadlines for the handling of the complaints, a concerning issue. In the event of an increase of recourses, it will be interesting to see which mechanisms will be put in place by the organizations in order to ensure that complaints are handled with diligence. Given that the delays for processing a complaint differ from one organization to another, specifically, four months or less for the CNESST and 17 months on average for the CDPDJ5, this may become a factor to consider.
  • Application of the Agreement to the health and safety division of the CNESST? A question mark remains as to the scope of the Agreement. Indeed, it appears that the CNESST intervened in regards to the modifications brought to the LSA on June 12, 2018, which suggests that it is only meant to involve the labour standards division of the CNESST. However, knowing that the health and safety division and the labour standards division already collaborate when a matter involves both an occupational injury and psychological harassment issue, one wonders what concrete form this new collaboration between the CNESST and the CDPDJ will take. As previously mentioned, only time will tell how the Agreement will play out in the real world!

Footnotes

1 https://bit.ly/32ulXfV.

2 https://bit.ly/2xZftbf.

3 CQLR, c C-12

4 CQLR, c N-1

5 https://www.cnesst.gouv.qc.ca/Publications/400/Documents/DC400-2032-12web.pdf; and http://www.cdpdj.qc.ca/Publications/RA_2017_2018.pdf.

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.

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