In Québec, section 123.6 of the Act respecting labour standards1 ("ALS") allows an employee to file a complaint for psychological harassment if they are an employee under the Act. Subsection 1(10) of the ALS defines "employee" as a person who works for an employer and is entitled to a wage.
Based on this definition and its interpretation by the courts, the key criterion for establishing a worker's employment status is the existence of a relationship of subordination.2 The Tribunal noted that in analyzing a worker's status, several factors must be considered: control over presence, control over how work is performed, the obligation to perform the work, ownership of work tools, the possibility of disciplinary measures, the existence of any type of loss or profit, and the obligation to personally perform the work.3 It is important to note, however, that financial dependence alone does not constitute proof of subordination.4 Having only one client is therefore not sufficient to establish such a relationship. These criteria must be applied contextually as shown by the Administrative Labour Tribunal in a recent decision.5
Facts
The complainant had been providing maintenance services to a business since 2017. In 2019, the complainant entered into a contract with a company specializing in commercial janitorial services, that provided maintenance services to the same business. The janitorial services were transferred to a third party and in 2021, the respondent acquired the client base of this third party and offered expanded services to the establishment where the plaintiff had been providing services since 2017. Notwithstanding all the changes to the entity that held the contract and for which the Plaintiff performed services, work continued to be performed by oral agreement, while the plaintiff's legal status became unclear.
Decision
Believing he was the victim of psychological harassment in the workplace, the complainant filed a complaint under the ALS against the respondent who had acquired the client base in 2021. The respondent claimed that the complainant performed housekeeping duties as a subcontractor and was therefore not an employee within the meaning of the ALS.
The Tribunal found that since the tasks and remuneration had changed, the initial contract dating back to 2019 was no longer binding. As such, the conduct of the parties would determine the legal status of their relationship.
Before analyzing the criteria for assessing the relationship of subordination, the Tribunal examined the method of remuneration. The Tribunal noted that a conclusion could not be drawn based on remuneration, as the payment of a per diem lump sum could reflect either business income or salary. The Tribunal also noted that, although the complainant had only one principal, nothing prevented him from accepting other contracts. His tax status as a self-employed worker was also taken into consideration, but was not the deciding factor.
When analyzing control over attendance, the Tribunal noted that the complainant independently managed his schedule and presence, without requiring prior approval. The Tribunal found that the respondent had little control over the performance of the work as the complainant independently determined how the work would be carried out.6The company did not monitor performance or quality of work, except to respond to client complaints, and the only requirement was the wearing of personal protective equipment.
The Tribunal also considered the obligation of personally performing the work, a key criterion in qualifying the employment relationship.7 Here, the complainant had hired someone to assist him on a regular basis, without the company raising any objections. In the Tribunal's view, this latitude was difficult to reconcile with the obligation to personally perform the work, which is inherent in the status as an employee. As the ownership of tools was shared between the client, the respondent and the complainant himself, this criterion was not determinative.
The Tribunal noted that the respondent did not exercise systematic control over the quality or quantity of work performed that could lead to disciplinary measures. Client complaints were forwarded to the complainant. Had there been repeated complaints, the company would have simply terminated the agreement and assigned the work to another subcontractor. Finally, the Tribunal found there was a risk of loss or profit for the complainant. Although his opportunities to increase profits were limited, his financial responsibility in the event of damage reinforced the conclusion that he was acting as an independent contractor.
The Tribunal concluded that the evidence of the complainant's autonomy outweighed any evidence that could have led to a finding of employee status. As the complainant was not an employee within the meaning of the ALS, his psychological harassment complaint was dismissed.
Takeaways
This decision highlights the importance of analyzing the employment relationship, based on the criteria of legal subordination. While the legislature recently expanded an employer's obligations regarding psychological harassment,8particularly by recognizing that such harassment can be perpetrated by "any person," including clients, suppliers or other third parties, the remedy provided by the ALS is only available to an employee and this argument can be raised as a preliminary argument. In this context, it is strongly recommended that employers hiring subcontractors or self-employed workers consult their Fasken lawyer to clarify the legal status of their collaborators.
Footnotes
1 CQLR c N-1.1.
2 Robert P. Gagnon et Langlois Kronström Desjardins, Yann Bernard et al (dir), Le droit du travail du Québec, 8th ed (Montréal, Éditions Yvon Blais, 2022) at para 187.
3 Paquin c Services financiers Groupe Investors inc., 2010 QCCRT 0589, judicial review dismissed, 2011 QCCS 6802, application for leave to appeal dismissed 2012 QCCA 37.
4 Dicom Express c Paiement, 2009, QCCA 611.
5 Blanchette c 7764740 Canada inc., 2025, QCTAT 1418.
6 Capodagli c ADI Art Design International inc., 2024 QCTAT 298, appeal for judicial review pending, 2024 CS 500-17-129017-243.
7 Blackburn c Industrielle Alliance, assurance et services financiers inc., 2014 QCCRT 0737.
8 See Bill 42, An Act to prevent and fight psychological harassment and sexual violence in the workplace, s 18.
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